Tamil Nadu

South Chennai

CC/164/2006

Mrs.Angel - Complainant(s)

Versus

The Medical Officer, - Opp.Party(s)

D.S.Prabha

07 Sep 2017

ORDER

                                                                        Date of Filing :   15.03.2006

                                                                        Date of Order :   07.09.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

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

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.164/2006

THURSDAY THIS  7^TH   DAY OF SEPTEMBER 2017

 

Mrs. Angel,

W/o. David,

No.45, Srinivasan Street,

J.J.Nagar, Kandan Chavadi,

Chennai 600 096.                                                           .. Complainant

                                        ..Vs..

 

1.  The Medical Officer,

PPP /STU,

Corporation of Chennai,

Santhome Sterilization Theatre Unit,

Chennai 600 004.

 

2. The Commissioner,

Corporation of Chennai,

Ripon Buildings,

Chennai 600 003.                                                 .. Opposite parties.

 

 

Counsel for Complainant                :    M/s. D.S.Prabha & others   

Counsel for opposite parties 1 & 2   :    M/s. S. Ezhilan

.

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 seeking direction to pay a sum of Rs.3,00,000/- as loss suffered, mental agony and for maintaining the child and also to pay cost of the complaint.

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

         The complainant submit that she is having three children namely Jansi Rani of 8 years, Jhonson Raja of 6 years, and Jaculine Rani of 4 years.   The complainant further state that on 11.11.2001 the complainant was admitted in the 1^st opposite party sterilization theatre for delivery of her 3^rd child Jaculine Rani.    On 12.11.2001 the complainant gave birth alive healthy female child Jaculine Rani.    At the time of admission for delivery itself the complainant stated that she is having three children, one male and two female and requested the 1^st opposite party hospital authorities for sterilization.  On 15.11.2001 due sterilization done to the complainant by the opposite party.    Further the complainant state that as per advice of the opposite parties the follow up treatment and instructions has been duly complied resulting that the complainant had missed periods.    Further the complainant state that she went to medical check up and the urinary test confirmed the pregnancy test as positive and gave a laboratory report dated 18.10.2005.  On seeing the report the complainant was shocked and she approached the opposite parties explained her family situation and requested them to abort the fetus. Due to the poor health condition the doctors had refused for that and advised her about the risk of aborting the child at that stage.   As such the act of the opposite parties clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

2. The brief averments in Written Version of  the 1^st opposite party      are as follows:

        The 1^st opposite party  denies each and every allegation except those that are specifically admitted herein.   The 1^st opposite party state that after  getting the consent of the complainant, the sterilization was performed on 15.11.2003 without charging any amount from the complainant.   The opposite party further state that the complainant was advised to the Santhome Healthy post for follow-up treatment, if the complainant missed her periods.  But the complainant did not turned up.   It is only the complainant who failed to attend the Health Post for regular Check up despite of Medical advice rendered by the Doctors.    As such the opposite party never committed any  deficiency in service  and therefore this complaint is liable to be dismissed.

3. The brief averments in Written Version of  the opposite party-2 are as follows:

The opposite party denies each and every allegation except those that are specifically admitted herein.   The 2^nd opposite party state that after operation, the complainant has been advised that she should report to the Santhome Sterilization Unit for follow-up; if she misses her periods.  Further it has been told to all the patients undergoing Sterilization operation to report if the periods are missed.  But in this case, the complainant did not come for follow up and failed to report to the 1^st opposite party after she missed her period.   It is only the complainant who failed to attend the Health Post for regular Check up despite of Medical advice rendered by the Doctors.    Hence there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

4. In order to prove the averments of the complaint, the complainant have filed proof affidavit as her evidence and documents Ex.A1 to Ex.A9 marked.  Proof affidavit of opposite parties filed and Ex.B1 to Ex.B3  marked on the side of the opposite parties.  

5.   The points for the consideration is:  

Whether the complainant is entitled to a sum of Rs.3,00,000/- towards financial loss, physical and mental agony and maintaining the child with cost as prayed for?

6. ON POINT: -   

Both parties and counsels not turned up to advance any oral argument.  Both parties filed their respective written arguments.   The complainant pleaded in the complaint and stated in the written arguments that she is having three children namely Jansi Rani of 8 years, Jhonson Raja of 6 years, and Jaculine Rani of 4 years.    On 11.11.2001 the complainant was admitted in the 1^st opposite party’s  sterilization theatre for delivery of her 3^rd child Jaculine Rani.    On 12.11.2001 the complainant gave birth alive healthy female child Jaculine Rani.    At the time of admission for delivery itself the complainant stated that she is having three children, one male and two female and requested the 1^st opposite party hospital authorities for sterilization.    On  15.11.2001 due sterilization done to the complainant as per Ex.A4, is admitted by the opposite party.  Further the complainant contended that she paid a sum of Rs.2,000/- at the time of sterilization operation but the complainant has not produced any record.  Further the complainant contended that as per the advice of the opposite party Doctors the follow up treatment and instructions has been duly complied; even though resulting missed periods to the complainant.   Hence the complainant did not turn up to the opposite party for further treatment.   While so the complainant suffered much physically by vague lower abdominal pain with nausea and amenorrhea.  Hence the complainant was doubtful that whether  she was pregnant.  She went to medical checkup and the urinary test confirmed the pregnancy test as positive and gave a laboratory report dated 18.10.2005.  On seeing the report the complainant was much shocked.  The complainant explained her family situation, poor health.  In such circumstances unexpected pregnancy not only causes the complainant physical and mental agony but also day today life problem.   The complainant was not able to take care  and to maintain her three children.  The complainant is a coolie  not able to go for her daily coolie work due to 4^th pregnancy, additional economic burden also caused.  The complainant spent huge amount towards maintaining the family, maintaining her health and unexpected child birth.   The pregnancy of 4^th fetus was caused only due to the deficiency of service on the part of the opposite party.  The opposite party carried out the sterilization with utter disregard of consequences (i.e.) negligent  imperfect inadequate.  The complainant is claiming a sum of Rs.3,00,000/- towards compensation by way of financial loss, physical and mental agony and for maintaining her child. 

7.     The contention of opposite party is that admittedly sterilization was done to the complainant on her own concern by the 1^st opposite party.   The complainant has not paid any consideration for such sterilization treatment.   The opposite parties sterilization theater was maintained and administered by the Corporation of Chennai for the benefits of general public.   All the medical services are being rendered on free of cost.  As such the complainant does not come under the purview of the term consumer and the complaint filed by the complainant is not maintainable,  is not acceptable, since the service of the 1^st opposite party regarding the sterilization is enforced as per Government Policy, and thereore its  deficiency are coming under the purview of the Consumer Protection Act 1986.  

8.     Further the opposite parties contended that in the Hon’ble Supreme Court of India 1996 (5) SCC

In Medical Council of India

..Vs..

V.P. Shantha

 

The patient got treated in the Hospitals run by Government / Local authorities on free of cost cannot claim any relief under the Consumer Protection Act 1986.   But in this case the question of treatment never arises.  The sterilization as per the policy of Government was carried out.  Further  the  opposite parties contention is that after careful check up and basic investigations the sterilization was performed on the complainant.   But the documents produced shall not establish due check up, basic investigations and fitness for such sterilization.

9.     Further the contention of the opposite parties is that post sterilization treatment has not been duly followed by the complainant resulting the failures causing pregnancy.  But the complainant specifically pleaded that she had followed the post sterilization treatment as per the instructions of the 1^st opposite party and there was no periods for three months.    Thereafter such pregnancy was confirmed by the scan report Ex.A6 & Ex.A7.   Further the opposite parties contended that there are chances of failure of sterilization may happen for that the opposite parties is not liable for compensation.   In this case the complainant was advised  for post sterilization treatment properly.  Even after missing periods the complainant has not reported to the opposite parties for further treatment.  There are possibilities of failures of sterilization due to reconciliation  of fallopian tubes.  But in this case a successful sterilization done by the opposite parties  and due certificate of sterilization also issued.  The opposite parties have not challenged the claim of the complainant.  Considering the facts and circumstances of the case this forum is of the considered view that the opposite parties are jointly and severally liable to pay a sum of Rs.2,50,000/- towards  compensation for mental agony and maintenance of the child.  The amount shall be deposited in the name of the child till the child attains majority and with cost of Rs.5000/- and the point is answered accordingly.

        In the result the complaint is allowed in part.   The opposite parties are jointly and severally liable to pay a sum of Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only) towards compensation for mental agony and maintenance of the child. The amount shall be deposited in the name of the child till the child attains majority  and with cost of Rs.5000/- (Rupees five thousand only)  to the complainant.

The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.   

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  7^th   day  of  September 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1-  29.9.1998 -Copy of Birth Certificate of Jansi Rani.

Ex.A2- 29.11.1999         - Copy of Birth Certificate of Jhonsan Raja.

Ex.A3- 12.11.2001         - Copy of Birth Certificate of Jaqulin Rani.

Ex.A4- 15.11.2001         - Copy of Sterilization Certificate.

Ex.A5- 20.11.2001         - Copy of Discharge Certificate.

Ex.A6- 18.10.2005         - Copy of Laboratory Report.

Ex.A7- 15.11.2005         - Copy of Scan Report.

Ex.A8- 10.1.2006  - Copy of legal notice.

Ex.A9- 17.2.2006  - Copy of Ack. Receipt.

 

Opposite parties’ side document: -    

 

Ex.B1-         -        - Copy of letter from the Medical officer.

Ex.B2-         -       - Copy of Case sheet.

Ex.B3-         -       - Copy Case diary.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.