DATE OF FILING : 02.08.2013.
DATE OF S/R : 28.05.2013.
DATE OF FINAL ORDER : 08.12.2015.
Chaitali Dolui,
wife of Sri Ram Mohan Dolui, Manuchak,
P.O. Jhikira, P.S. Joypur,
District Howrah. ……………………………………………………… COMPLAINANT.
1. The Secretary,
Health and Family Welfare Department,
Government of West Bengal, Sasthya Bhawan, Salt Lake City,
Kolkata 700 091.
2. The Director of Health Services,
Government of West Bengal, Swastha Bhawan,
Salt Lake City,
Kolkata 700 091.
3. The Chief Medical Officer of Health,
Howrah, P.O. & District Howrah.
4. The Clinical In Charge,
Mario Stopes Parivar Seva Clinic,
174/8, N.S. C. Bose Road, 1st Floor,
Kolkata 700040.
5. The Surgeon.
Mario Stopes Parivar Seva Clinic,
174/8, N.S.C. Bose Road, 1st Floor,
Kolkata 700 040.
6. Medical Officer,
Amoragori B.B. Dhar Rural Hospital, P.S. Joypur,
District Howrah. ……………………………………………OPPOSITE PARTY.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak .
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Chaitali Dolui, against the Secretary, Health and Family Welfare Department, Government of West Bengal, and five others, praying for an award of Rs. 10 lakhs as compensation from Marie Shophea Parivar Seva Clinic including their attending surgeon and other reliefs as prayed for.
- The case of the petitioner is that she is a poor woman and decided to have laparoscopic sterilization with consent of her husband and got herself admitted at Marie Shophea Parivar Seva Clinic of 174/8, N.S.C. Bose Road, 1st Floor, Kolkata 700 040, for undergoing the laparoscopic sterilization operation on 01.02.2004 on payment of proper fees of Rs. 200/-. After operation, they have been enjoying their conjugal life without any risk of being conceived and surprisingly she got pregnant as consulting Gynecologist Dr. Suman Sarkar who opined on 14.5.2006. The Radiologist and Sonologist of the pathological laboratory with their report on 06.05.2006 reported that the petitioner has single viable foetus with 17 weeks maturity. She was shocked and thought it was the negligence and latches on the part of the attending surgeon of the clinic who operated on her on 01.12.2004 and no laparoscopic sterilization has been conducted by the surgeon. She wrote to the Government Department including Minister but in vain and so filed this case.
- The o.p. no. 3, Chief Medical Officer of Health, Howrah, contested the case by filing a written version denying the allegations made against them and submitted that the case is barred by limitation and also the petitioner submitted that she was admitted at Marie Shophea Parivar Seva Clinic situated at 174/8, N.S. Road, 1st floor, Kolkata 40, which is not under the jurisdiction of C.M.O.H., Howrah, to issue licence by the C.M.O.H., Howrah, and so they have nothing to do in this case and it was the duty of the respective clinic to take action against the surgeon. He also submitted that the petitioner approached Dy. Assistance Director of Health Services, Swastha Bhavan, Bidhannagar, Kolkata, when the officer called her by his letter dated 25.01.2011 with all documents but they could not take any steps as two years already lapsed and also the petitioner did not turn up. It is the responsibility of the concerned authority clinic for providing compensation to the petitioner.
- The o.p. no.4 being the in charge of Marie Shophea Parivar Seva Clinic and o.p. no. 5 being the attending surgeon on 01.12.2004 contested the case by filing written version denying the allegations made against them and they submitted that the case is highly barred by limitation as laid down U/S 24A of the C.P. Act, 1986 and the complaint was lodged after lapse of 7 years. The clinic was registered under the Society Registration Act in the name and style Parivar Seva Sanstha Clinic. They further submitted that the petitioner filed this case because despite having undergone sterilization in their clinic she again got conceived. Assuming the statement of the petitioner being true, it is submitted by the o.ps. that it is an unfortunate case of sterilization failure and the same cannot be attributed to the negligence of the o.ps., clinic or the attending surgeon. It is medically accepted fact that female sterilization is not full proof procedure and conception can take place despite sterilization and thus 100% success of sterilization can neither be guaranteed nor achieved. They referred to a literature being ‘Principles of Gynecology’ by Sir Norman Jeffcott who opined that “No method is absolutely reliable and pregnancy is reported after subtotal and total hysterectomy, and even after hysterectomy with bilateral sipingectomy……………………………………….......................……………………………….…Even when tubal occlusion operation are completely performed and all technical precautions taken intra uterine pregnancy occurs subsequently in 0.3% cases.” The o.ps. referred the Supreme Court case in State of Punjab & Ors. V. Shiv Ram 2005(7) SCC1 wherein the Supreme Court held that mere failure of sterilization is not indicative of negligence. There is no cause of action on the part the petitioner to file this case which shall be dismissed.
5. The other o.ps. though served with notice did not appear and file written version and thus the case is heard ex parte against them.
6. Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the case is barred by limitation ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
7. All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of her case, the petitioner filed evidence in the form of an affidavit as well as documents. It is noticed that Dr. Suman Sarkar held the laparoscopic operation on 01.12.2004 as could be noticed from her affidavit in City Civil Court. She filed this instant case for the year 2013 i.e., long after 8/9 years and filing a case after a lapse of two years of the cause of action is barred by limitation and the Consumer Forum shall not entertain such case. Further, this Forum heard the ld. counsel of both sides who filed the written argument. While the counsel for the petitioner submitted that in spite of laparoscopic sterilization operation she got pregnant which negligent act on the part of the doctor as well as the clinic and thus she is entitled to compensation. The counsel for the o.p. submitted that it is a case which is highly barred by limitation and also the medical literature as well as our Supreme Court categorically opined that a woman having undergone sterilization operation became pregnant and delivered a child and the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy and unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing surgery. The Supreme Court further stated that method of sterilization are most popular and prevalent and 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 became pregnant due to natural causes. Once a woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. The Supreme Court again stated that the cause of action of claiming compensation in cases of failure in sterilization operation arises only on account of negligence of the surgeon and not on account of child birth.
8. In the instant case the operation took place in the year 2004 and she gave birth to a child in the year 2006 and such act of child taking birth is nothing but negligent on the part of the doctor and the clinic as it stated by the petitioner. But this Forum had gone through the cases of the parties and the connected literature and judgment of our National Commission as well as Supreme Court wherein it has been specifically opined that failure in the case of sterilization operation does not amount to negligence on the part of doctor because such failure is due to natural causes and the sterilized woman could become pregnant and mother at any later stage. Here is no case that while undergoing operation and also later on the petitioner suffered due to negligent act on the part of the doctor who with due care and caution operated the patient who suffered no injury and passed very peaceful life as stated by her and simply she again got and gave birth to a child never amounted to negligence on the part of either the doctor or the clinic. Further she filed this case long after 7/8 years and thus the case is hopelessly barred by limitation also.
In the result, the application fails.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 106 of 2013 ( HDF 106 of 2013 ) be dismissed on contest against o.p. nos. 3 & 4 without cost and dismissed ex parte against the rest without costs.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
