IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
MURSHIDABAD , AT BERHAMPORE.
CASE No. CC No. 09/2016.
Date of Filing: Date of Admission : Date of Disposal:
19.01.2016 04.02.2016 16.01.2018
Murshida Bibi,
W/o Mainuddin Sk,
Vill. Saharbasa, P.O. Nutanpara Raipur,
P.S. Hariharpara, Dist. Murshidabad. …………… Complainant.
-vs-
The Medical Officer,
Hariharpara P.H.C.,
Vill. Baharan, P.O. Baruipara,
P.S. Hariharpara,
Dist. Murshidabad, Pin 742165. ............... Opposite Party.
Sri Swapan Mukherjee, Advocate ……… for Complainant
Sri Siddhartha Sankar Dhar, Advocate ……… for Opposite Party
Present : Smt. Chandrima Chakraborty …. .…. Member.
Sri Manas Kumar Mukherjee ……… Member
Cont. ……….…. 2
= 2 =
J U D G M E N T
Chandrima Chakraborty, Presiding Member.
Filtering out the unnecessary details in the complaint, the Complainant’s case may be summarized thus :-
In succinct, the fact stated in the complaint, is that, the Complainant having 2 children had admitted in the Opposite Party Hospital on 14.02.2011 having Registered No. 520 and after testing her pregnancy test found the same as negative the Opposite Party doctor advised the Complainant to operate “Tubectomy” which was held on 16.02.2011 and the Complainant was discharged on 17.02.2011 and the Opposite Party had paid a sum of Rs. 600/- only to the Complainant as ‘mini lab’ payment as per the Govt. Scheme.
But unfortunately the Complainant further became pregnant and admitted to the Baharan BPHC on 28.07.2015 and gave birth of a female child as her 3rd issue and was discharged on 30.07.2015 having Registered No. 999.
The Complainant alleged that she became further pregnant due to wrong treatment of the Opposite Party and felt uneasy and insulted and was aggrieved for the act of the Opposite Party, what amounts to negligence and deficiency in rendering service by the Opposite Parties towards the Complainant for which being victimized and harassed the Complainant has to file the instant case seeking adequate redressal against the Opposite Parties.
Cont. ……….…. 3
= 3 =
Resisting the complaint, the Opposite Party No. 1 & 2 filed the Written Version denying the contentions and all material allegations made by the Complainant in the petition of complaint and stating inter alia, that the complainant has no cause of action to file the case and the same is not maintainable.
The specific case of the Opposite Party No. 1 in crisp, is that, the Complainant was operated by the doctor having vast experience of the Opposite Party Hospital with proper due care since the date of admission till her discharge and the said Tubectomy operation was successful without any complication and without any negligence on part of the Opposite Party.
But the actual fact is that the Sterilization operation, as per the Medical Science, which are most popular and prevalent are not 100% safe and secure and there is a chance of failure rating from 2% to 6% inspite of the said Tubectomy/Ligation operation having been successfully performed without any negligence on part of the Surgeon. The Sterilized woman can become pregnant due to natural causes. So as per the view of the Medical Science mere pregnancy after Sterilization does not prove that the opposite Party is deficient and/or negligent towards the Complainant and the same was duly described to the Complainant and her husband in due course. Moreover, the Complainant never paid any amount for this Tubectomy operation towards the Opposite Party.
Thus, theses Opposite Party No. 1 strictly denied any negligence or/ and deficiency on their part in rendering service towards the Complainant and prayed for dismissal of this case.
Cont. ……….…. 4
= 4 =
Point for Consideration
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute what is to be decided by the Forum is that, whether the Opposite Party are liable for deficiency and/or negligence towards the Complainant in rendering service or not.
On overall evaluation of the argument by the Ld. Advocate of the Complainant and the Ld. Advocate for both the Opposite Party it is evident that admittedly the Complainant had done the Tubectomy/Ligation operation just after birth of her 2nd child on 16.02.2011 by the Opposite Party Hospital and the Complainant was discharged from the Opposite Party on 17.02.2011. But thereafter again became pregnant and gave the birth of another child on 28.07.2015 and was discharged on 30.07.2015.
The record reveals that admittedly the Opposite Party had paid a sum of Rs. 600/- only to the Complainant ‘mini lab’ payment as per the Govt. Scheme and manifestly it is evident from the record that the Complainant did not pay any consideration amount towards the Opposite Party.
Cont. ……….…. 5
= 5 =
The Ld. Advocate for the Opposite Party raised the point that as the Complainant did not pay any consideration money she cannot be the ‘Consumer’ as per the Consumer Protection Act, 1986. The Section 2 (d) (ii) of the Consumer Protection Act, 1986, specifically says that, ‘consumer’ means any person who – hires or avails of any services for a consideration……… and in this particular case, the Complainant herself stated and admitted the fact that she never paid any consideration money to the Opposite Party. So, according to the C.P. Act, 1986, the Complainant is not the ‘Consumer’ as per law and has no authority to file the instant case as being the ‘Complainant’/’Consumer’.
Moreover, the Ld. Advocate for the Opposite Party further stated that the instant complainant is not entitled to get the relief as prayed for on merit also.
It is manifestly revealed from the Cross–Examination of the Complainant herself (PW 1) which was pointed out by the Ld. Advocate of the Opposite Party that the Complainant admitted the fact that the Opposite Party had advised the Complainant for abortion but the husband of the Complainant did not give consent for the sais abortion and further specifically admitted in her Cross–Examination that she gave birth of her 3rd child a daughter with good health.
Now the Complainant alleged that the Opposite Party did the said Tubectomy/Ligation operation in negligent manner for which the Complainant further became pregnant after four years of such Tubectomy/Ligation operation. The fact remains that the Complainant was pregnant after four years of the Tubectomy/Ligation operation and there is no dispute regarding such fact by the Opposite Parties.
Cont. ……….…. 6
= 6 =
But the Ld. Advocate for the Opposite Party specifically stated that the Sterilization operation, as per the Medical Science, which are most popular and prevalent are not 100% safe and secure and there is a chance of failure rating from 2% to 6% inspite of the said Tubectomy/Ligation operation having been successfully performed without any negligence on part of the Surgeon. The Sterilized woman can become pregnant due to natural causes and to prove the same the Ld. Advocate of the Opposite Parties referred a Ruling of the Hon’ble National Commission IV (2014) CPJ 706 NC, wherein the Hon’ble NC pleased to pass the Order that, Cause of failure of sterilization operation may be obtained from laparoscopic inspection of uterine tubes, or by X-Ray examination, or by pathological examination of materials removed at subsequent operation of re-sterilization. Failure due to natural causes would not provide any ground for claim. Moreover if couple opt for bearing the child, it ceased to be unwanted child.
Moreover, in this case, at the time of Cross–Examination the Complainant specifically admitted that she did not agree to abord the 3rd child and gave the birth of her 3rd child which means the 3rd child of the Complainant was not an unwanted child.
Furthermore, the Ld. Advocate for the Opposite Party referred another Judgment passed by the Hon’ble National Commission in Lakshmi Vs. director of medical Services …… on 15th Jan. 2005, wherein the Hon’ble NC observed the view that, the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of operation having being successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes.
Cont. ……….…. 7
= 7 =
The Ld. Advocate of the Opposite Party further referred another Judgment of the Hon’ble Apex Court in State of Haryana & Ors Vs. Raj Rani on 29th Aug. 2005, wherein the Hon’ble Supreme Court pleased to opined that, the Pregnancy can be for reasons de hors any negligence of the surgeon. In absence of proof of negligence, the surgeon cannot be held liable to pay compensation.
In another Judgment of the Hon’ble Apex Court cited by the Ld. Advocate of the Opposite Party, in State of Punjub Vs. Shiv Ram & Ors on 25th Aug. 2005, wherein the Hon’ble Supreme Court pleased to observe the view that, It is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning.
We are, therefore, clearly of the opinion that merely because a 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.
Cont. ……….…. 8
= 8 =
The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.
The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub- section (2) of Section 3 provides ____ "Explanation II. ____ Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman."
The Ld. Advocate for the Opposite Party referred another ruling of Uttar Pradesh State Consumer Dispute Redressal Commission, Lucknow, in I (2010) CPJ 329,
Cont. ……….…. 9
= 9 =
wherein the said State Commission followed the same view of the Hon’ble National Commission that, No expert evidence in support alleged – Pregnancy and delivery of child not enough to prove negligence – In 5 to 7% cases, operation unsuccessful on account of various natural consequences – Negligence, deficiency in service not proved.
Another Judgment of the Hon’ble National Commission in the II (2007) CPJ 235 NC, also referred by the Ld. Advocate of the Opposite Party wherein the Hon’ble NC observed that, No expert evidence produced by Complainant for alleged negligence – Onus lies on Complainant to prove same.
In the instant case, the Complainant never produced any ‘Expert Evidence’ to prove the fact that in this Tubectomy/Ligation operation the Opposite Party had done any negligence and/or deficiency towards the Complainant other that the fact that after the Sterilization operation, the Complainant became pregnant and gave birth of her 3rd child. But in strict observation of the Hon’ble Apex Court and the Hon’ble National Commission it is not the only reason to prove that the Opposite Party was/is negligent and/or deficient towards the Consumer/Complainant.
So, following the view of the Hon’ble Apex Court and Hon’ble National Commission we find no negligence and/or deficiency on part of the Opposite Parties towards the Consumer/Complainant in absence of any Expert Evidence.
Thus the unanimous decision of the Forum is that the Complainant is failed to prove her case that in doing the Tubectomy/Ligation operation
Cont. ……….…. 10
= 10 =
the Opposite Party had done any deficiency and/or negligence towards the Complainant for which the Complainant had become pregnant after such sterilization operation. Moreover, where the Complainant has admitted the fact that the Opposite Party had advised the Complainant for abortion of her 3rd child but the Complainant did not agree with the same and gave the birth of that child.
Therefore, in the light of the above discussion it is finally and commonly decided by the Forum that the Complainant has failed to prove her case and is not entitled to get relief as prayed for.
In short, the Complainant deserves failure.
In the result, we proceed to pass
O R D E R
That the case be and same is dismissed on contest against the Opposite Party but without any cost.
Parties to bear their own cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
MEMBER PRESIDING MEMBER
