DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

Complaint Case No. 408/12

In the matter of:

N.K.Sharma, President:-

Ms. Sonica Mehrotra, Member:-

Order by Ms. Sonica Mehrotra, Member:-

ORDER

1. Brief facts of the case of the complainant are that she is a house wife aged about 40 years and was already a mother of two children in 2008 when she had undergone sterilization (Tubectomy) from the OPs on 16.01.2008 and was assured by the OPs that there will be no chance of getting pregnant. However, in December 2010, the complainant shocking discovered that she was pregnant by about two months and on medical examination found that despite sterilization she had conceived for the 3^rd time for which the complainant and her husband were neither financially nor mentally prepared. On contacting the OPs about this pregnancy, the same was unheeded to because of which the complainant had lodged an intimation 15.03.2011 with Deputy Commissioner of Police. A male child was born to complainant on 18.07.2011, for which delivery expenses, post delivery expenses, ill health, immense hardship and agony had to be borne and undergone by the complainant due to fault and negligence of the OPs because of which sterilization proof to be a failure and the purpose of birth control was defeated. The complainant lastly sent a legal notice dated 9.5.2012 to the OPs seeking compensation for loss of money, health, peaceful and happy life and for her husband’s loss of special increment and other benefit given by the Government. However, the said notice went un replied to therefore the complainant was constrained to file the present complaint before this Forum for issuance of direction to OP to pay Rs. 20,00,000/- as compensation under the following heads as broken up:-

1. Rs. 1,00,000/- for causing financial loss
2. Rs. 2,00,000/- for health loss
3. Rs. 1,00,000/- loss of special increment
4. Rs. 5,00,000/- for mental pain, agony and harassment
5. Rs. 11,00,000/- for maintenance of 3^rd child.

2. Notice was issued to OPs and the OPs entered appearance and filed their written statement taking primary defence that the complainant had been clearly explained about the risk of failure at point G of the consent Form which clearly stated that “I also know that there are still some chances of failure will not be held responsible by my relative or me or any other person whom so ever,” which was signed by the complainant and therefore she had prior knowledge of implication / chances of failure in said sterilization procedure. Moreover, since the service was rendered free of charge by the medical practitioner attached to the OP hospital where such service were rendered free of charge to everybody, the complainant does not come within the definition of Consumer since such services were not ‘service’ as defined in section 2 (1) (o) of the CPA. The OP therefore prayed for dismissal of the present complaint on the above two grounds. The OP further took the plea that the complainant did not get the HSG done despite advised in the discharge slip. Furthermore the complainant did not come for follow up for missed period complaint and when she reported in Gynae OPD in December 2010, she was over due by 2 months and pregnancy test was positive. The OP further stated that the complainant had not divulged the fact that legation had been done and as such is trying to shift the burden of her own mistake on the OP for which the OP cannot be blamed.
3. Replication filed by the complainant was reproduction of her complaint.  Evidence by way of affidavit filed by the complainant and OP exhibiting on record the material documentary evidence relied upon by both the parties.
4. Written arguments were filed by both the parties alongwith judgment in support/defence of their case / rebuttal. The complainant relied upon judgment of Pavittar and Ors vs State of Punjab passed by the Hon’ble NCDRC vide Citation III (2006) CPJ 287, State of Haryana and Ors. Vs Smt. Santra passed by the Hon’ble Supreme Court vide Citation i (2000) CPJ 53 (SC) and N. Laxmi vs Mahesh Hospitals and Research Foundation and Ors passed by The Hon’ble NCDRC in 2015 in support of her claim as consumer of ‘service’ within the definition of Section 2 (1) (o) of the CPA as well as medical negligence attributed to the OP. OP relied upon judgment of the Hon’ble Apex Court in the case of State of Punjab vs Shivram and Ors (2005) 7 SCC.
5. We have heard the rival contentions of the parties and have carefully perused the case file and documentary evidence placed on record thereof by both the parties as well as judgments filed by both in support of their case/defence. Firstly on careful consideration and screening of judgments filed by and relied upon by the complainant, in the case of Pavittar Singh vs State of Punjab The Hon’ble NCDRC had remanded the case back to the Punjab State Commission Chandigarh for consideration of the case of medical negligence with respect to pregnancy despite sterilization on the basis of the ruling by The Hon’ble Supreme Court in the case of Smt. Santra Devi in which the Hon’ble SC has firstly held that in cases of conception despite sterilization operation, there is no bar in “clamming damages on account of tort of medical negligence in not caring out sterilization operation with due care” and secondly held that in terms of its own judgment in the case of Indian Medical Association vs V.P. Shantha and Ors, service rendered at a Government Hospital / Health Centre / Dispensary where services are rendered on payment of charges and also free of charge to people will fall within the ambit of expression ‘service’ as defined in section 2(1)(o) of CPA. Therefore, there was no conclusive or settled law vide the said judgment which was merely directory in nature for retrial by Hon’ble State C. Of P. on the above two grounds. Further in the case of  State of Haryana vs Smt. Santra, there was material medical evidence adduced by the respondent Smt. Santra for proving and establishing medical negligence against the operating Doctor who had done the procedure of sterilization on her despite which she became pregnant. In this case the concerned Doctor on examination had stated that the operation related only to the right Fallopian Tube and the left Fallopian Tube was untouched which indicated that ‘complete sterilization’ operation was not done despite assurance by the hospital to the complainant of full, complete and successful sterilization having been performed by the said hospital and that she would not conceived in future.  However, on conception of the Eighth child she requested the hospital for abortion but was advised against it as peril on her life. Therefore, in this case there is a clear distinction / demarcation from the present case of the complainant in as much as there was no assurance given by the OP to complainant for 100% success of sterilization and the complainant had herself signed on the MTP ligation form that there were chances of failure and she had never approached the OP for abortion despite acquiring knowledge in December 2010 that she was two months pregnant and could have undergone MTP. Therefore this judgment clearly does not come to rescue or vindicate the stance of the complainant. Lastly, in the recent judgment of N.Laxmi vs Mahesh Hospital and Research Foundation and Ors, Hon’ble NCDRC held that though the patient was operated ‘free of cost’ but subsequently, had to incur medical expenditure in different hospitals for corrective surgery owing to negligence of Doctors in the first ‘free of cost’ treatment/surgery under ‘Arogya Shree Scheme’ and therefore applying the principles laid down by the Hon’ble Supreme Court in landmark decision in the case of Balram Prasad vs Kunal Saha (2014) (1) SCC 384, awarded enhanced compensation on grounds of gross medical negligence. However in clear departure from the above quoted judgment / relied upon judgment of N.Laxmi and most conspicuously, the complainant has not filed a single bill towards medical expense incurred by the complainant from the knowledge of pregnancy for the period December 2010 till delivery in July 2011 which on the basis of medical documents filed by the complainant, took place in some other hospital and several test / examinations the complainant had undergone in the said period. Therefore, this judgment of N. Laxmi also does not espouse the claim of the complainant also on the ground that the complainant could not established beyond doubt whether the failed sterilization operation was done by the OP would amount to medical negligence.
6. The OP has relied upon the landmark judgment of State of Punjab vs Shivram (2005) 7 SCC in which the Hon’ble Apex Court had held that proof of negligence shall have to satisfy Bolam’s test set out in Jacob Mathew case (2005) 6 SCC. The Hon’ble Apex Court held 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. It is for the woman who has conceived the child to go or not to go for MTP. Having gathered the knowledge of conception inspite of having undergone sterilization operation, if the couple opts for bearing the child, its ceases to be a unwanted child. Compensation for maintain and upbringing such a child cannot be claimed once the woman misses the menstrual cycle, it is expected of the couple to visit the Doctor and seek medical advice. Section 3 (2) read with explanation (ii) of the MTP Act 1971 provides for legal and valid ground for termination of unwanted pregnancy within 20 weeks of conception which is legally permissible under the said act.   We find force in the defence of the OP in light of this judgment having been relied upon by the OP in view of the facts and circumstances of the present complaint on the following grounds:-

The complainant could not establish or prove that 100 % assurance / success of sterilization operation was given by the OP to her or that she had offered herself for complete sterilization therefore her case is completely distinct / different from the facts in the case of State of Haryna vs Santra Devi in which the lady had offered herself for complete sterilization and therefore leaving her one Fallopian Tube unblocked was clear medical negligence specially when she had been assured of full complete and successful sterilization. Furthermore here the complainant had herself been explained and had duly signed on the annexure IV- application for sterilization operation and informed consent form of the OP, clause g and h of which stated as hereunder:-

Clause g stipulates that “I also know that there are still some chances of failure of the operation for which the operating doctor and health facility will not be held responsible by my relatives or me or any other person whatsoever.”

The complainant despite acquiring knowledge of two months pregnancy in December 2010 and advise for MTP given by the OP, did not opt for abortion which was within legally permissible timeline at the relevant time. Clause h of application for sterilization operation and informed consent form clearly stipulates that “If after the sterilization operation, there is any missed menstrual cycle of mine / my spouse, then I shall report within two weeks to the doctor / health facility and will get MTP done free of cost.” The complainant even though claimed her third pregnancy due to failure of sterilization as an unwanted pregnancy owing to failure of sterilization operation but instead underwent the entire gestation period and delivered this third child and therefore cannot be allowed to take advantage of her own act of omission and commission and in the present fact and circumstances of the case has clearly sealed her fate for any relief being sought on this ground that the Hon’ble Apex Court in Shri Ram’s judgment clearly ruled that on knowledge on conception despite sterilization, bearing the child cannot be an unwanted pregnancy and compensation for maintenance and a bringing of such a child cannot be claimed.

Lastly, our attention has been drawn by OP to circular No. 118 (283)/Ply/DFW/2001/3132-97 dated 16.03.2006 issued by health and family welfare department Government of Delhi with respect to scheme of Ex- Gratia compensation to the sterilization acceptors in Delhi which specified that in compliance of Hon’ble Supreme Court direction given on 1^st March 2005 and in the writ petition (Civil) No. 209/2003 of Ramakant Rai & Ors vs Govt. of India & Ors. The Government of India alongwith Oriental Insurance Co. has brought in Insurance Policy for Ex-Gratia compensation to the sterilization acceptor w.e.f December 2005. The salient feature relevant to the present case is hereunder:-

The package provided under the family planning insurance scheme is as follows:-

Section 1 (c) – failure of sterilization (including first instance of conception after sterilization) would be Rs. 20,000/-.

In fact as per clause (i) and (j) of the application for sterilization operation and informed consent form, the complainant had by signing the same, given her consent to the Ex-Gratia payment and clearly in her inability to get the pregnancy aborted within two weeks, she would not be entitled to claim any compensation over and above the compensation under the afore mentioned Government Scheme from any court of law in this regard or any compensation for upbringing of the child.

7. It appears to be a premeditated and cleverly calculated complaint designed to give birth to the child born out of failed sterilization and then after delivery seek maximum permissible compensation in term of pecuniary jurisdiction of this Forum under vague, frivolous, unsubstantiated, ridiculous and highly unjustifiable heads as can be ascertained from the prayer clause of the complaint.      
8. We therefore, have weighed the case and defence of both the parties and the defence of OP clearly outweighs that of the complainant.

The method of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure and despite sterilization being successfully performed without negligence by the surgeon, the sterilized woman can become pregnant due to natural causes.   

9. We therefore do not find the OP guilty of medical negligence. However, as per the Ex-Gratia Scheme of compensation. Notification which binds both complainant and the OP in such eventuality of pregnancy despite sterilization, we direct the OP to pay a sum of Rs. 20,000/- to the complainant within 30 days from the date of receipt of copy of this order. The complaint is disposed of accordingly.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.  File be consigned to record room.

            (Announced on 20.12.2017)