CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO. CC/69/13

                                                                                                             Date of Institution:-11.02.2013

                                                                                                              Order reserved on:27.04.2023

                                                                                                                Date of Decision:-19.05.2023

IN THE MATTER OF:

Bhushan Das

S/o Sh. Raghav Das

R/o House No.24,

Village Samaspur Khalsa,

Po Ujwa New Delhi - 110073                                                        .......Complainant

VERSUS

1. The Medical Superintendent

Rao Tula Ram Hospital

Jafarpur Kalan, New Delhi

2. Govt. of NCT of Delhi

Naya Sachiwalaya , New Delhi .…..Opposite party

O R D E R

Per Dr. Harshali Kaur, Member

1. Already having three children, the Complainant, a daily wager, and his wife approached OP-1 hospital to get his wife’s family planning operation (sterilisation), Smt. Rekha Devi on 07.12.2011. He states that the operation was successfully conducted on 30.11.2011, and his wife was discharged on 01.12.2011 with the assurance that no children would be born to the Complainant and his wife after the sterilisation. The Complainant has annexed the discharge card with his complaint.

2. The Complainant states that his wife gave birth to a daughter on 04.01.2013 in the OP-1 hospital despite the operation. Thereafter a second sterilisation operation was conducted on his wife on 06.01.2013 by the doctors.

3. The Complainant alleges that he came under enormous mental and financial loss due to this negligent act of the OPs and hence filed the present complaint U/S 12 of the Consumer Protection Act, 1986, alleging deficiency-in-service on the part of the OPs. He has prayed for:-

1. refund of the cost of the medicine
2. a sum of Rs.20,00,000- towards compensation for the mental agony, pain, and torture he faced due to the negligence of the OPs that resulted in the birth of the fourth girl child.
3. Litigation charges and any other relief deemed fit.

4. Notice was issued to the OPs who filed their reply in which the OPs state that, admittedly, Smt. Rekha, w/o the Complainant, opted for Laparoscopic tubal litigation, a permanent contraception method at OP-1 Hospital. While signing the consent form, the Complainant’s wife was informed that the procedure entailed a risk of failure. Annexure-1 is the copy of the consent form annexed with the reply.

5. After duly understanding the inherent possibility and the risk of failure of the procedure, the Complainant’s wife chose to undergo the procedure of Laparoscopic Tubal Ligation on 30.11.2011 at no cost. She also received incentive money at rates prescribed by the Government of India, Ministry of Health & Family Welfare (MOHFW) through NRHM funds provided by the Directorate of Family Welfare, Government of Delhi, to the Integrated District Health Society (IDHSSWD). IDHSSWD further distributed these funds to OP-1 Hospital for disbursement to the individuals opting for a permanent method of family planning.

6. The IDHS SWD has also constituted a District Quality Assurance Committee (DQAC) to which all cases of ligation failure are referred and which, after investigation, decides if it is a fit case for compensation as per Government of India, Ministry of Health & Family Welfare (MOHFW) guidelines. Further, OP-1 Hospital is only a service provider on behalf of the Government and charges nothing from the patients for its services.

7. Further, when pregnancy occurred after the failure of the ligation operation, the Complainant’s case was referred to the DQAC of IDHSSWD to decide on compensation at prescribed rates. Annexure-4 is the ligation failure report sent to the District Quality Assurance Committee. Annexure-5 is the claim filed by Smt. Rekha. Anneure-6 is the sanctioned approval dated 28.01.2013, when her case was taken up in the quarterly meeting of DQAC on 23.01.2013. In the present case, on the recommendation of IDHSSWD, paid a sum of Rs.30,000/- to the Complainant, which was received from M/s ICICI Lombard Ltd. as insurance benefits against policy no. 4021/58413793/02 vide cheque on 08.02.2013 (Annexure-7). This insurance cover is provided to all such patients whose tubal ligation procedure fails and leads to pregnancy as it is the accepted possibility due to which all patients are insured under the “Government of India, Family Planning Insurance Scheme”.

8. Hence, there is no negligence on the part of the OPs. The Complainant’s wife could have opted for MTP (Medical Termination of Pregnancy) when the pregnancy occurred after the procedure, as she was counselled regarding the option of MTP, which was duly noted in the OPD Card. Annexure-3 is a copy of the OPD slip dated 09.12.2012.

9. The Complainant filed the Rejoinder, contesting the averments made by the OP in their reply and stated that the risk of failure of the Family Planning operation was never discussed with the Complainant or his wife. He admits to receiving Rs.30,000/- from the insurance company stating that this amount is very meagre and twenty lakhs would be justifiable to bring up a girl child. The Complainant further states that a paper was signed by him but the possibility of failure of the procedure was never disclosed. He further urges that the doctor who admittedly counselled the Complainant’s wife to terminate her pregnancy should be prosecuted as per the law of the land, as it was a sin to do. Therefore, his wife did not consent to the MTP. The Complainant also filed his own affidavit to be read as evidence wherein he states that the service was provided by OP-1 Government Hospital, funded by public funds. He has further reiterated his averments as stated in his Rejoinder.

10. The OPs filed the affidavit of Dr. Vijay Rai, Medical Superintendent of OP-1, to be read as evidence, wherein all the documents filed by the OPs with their reply were proved on record. He also repeated what had already been stated in their reply. Both parties filed their written arguments, and the instant complaint was fixed for final arguments.

11. We have heard the Complainant carefully and have also perused the documents filed by the contesting parties. In our view, the Complainant approached OP-1 Government Hospital for a permanent sterilisation operation of his wife under the scheme floated by the OP-2 wherein the individuals opting for this procedure under the scheme would be given incentives at the rates prescribed by the Government of India Ministry of Health and Family Welfare through NRHM funds. The funds were provided by the Government to the IDHSSWD, who in turn provided the funds to the OP-1 Hospital. OP-1 disbursed the same to all the patients, like the Complainant, who approached them under the scheme. The Complainant has annexed the Payment Voucher for Incentive Money under the Family Planning Program on Page no.7 of the complaint dated 09.01.2013, amounting to Rs.400/-. Hence, the Complainant’s wife got her surgery from the OP-1 Hospital free of cost and also received an incentive for the same.

12. Before delving into the merits of the complaint, a bare perusal of the documents annexed by the Complainant with his complaint clarifies that he did not pay any consideration for his wife’s sterilisation operation at the OP-1 Hospital. In fact, the Complainant, after receiving the Reply of OP-1, admits in the Rejoinder filed by him regarding receiving the compensation amount of Rs 30,000/- from the Insurance company. After obtaining the compensation dispensed by OP-2 through OP-1, the Complainant filed the present complaint.

13. The definition of ‘Consumer’ as per section Section (2) (1) (d) clarifies who is a consumer in the provisions as laid down in the Act:-

Section 2(1)(d) in the Consumer Protection Act, 1986

(d) “Consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)  hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose;

14. In our considered view, since neither the wife nor the Complainant paid any consideration for the services they availed of the OP-1 hospital; thus, the Complainant does not fall within the ambit of a ‘Consumer’ as defined in the Consumer Protection Act. Therefore, we are constrained to dismiss the present complaint without cost.

• Order be given dasti to both parties.
• The file be consigned to the record room thereafter.