State Consumer Disputes Redressal Commission
Daya Devi vs State Of H.P & Ors. on 24 October, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.359/2007. ORDERS RESERVED ON 15.9.2011 AT MANDI. DATE OF DECISION: 24.10.2011. In the matter of: Smt. Daya devi wife of Sh. Roshan Lal , resident of Village Kun, P.O. Kot (Tungal) Sub Tehsil Kotli, District Mandi, H.P. Appellant. Versus 1. State of H.P. through Secretary (Health) Shimla, H.P. 2. Chief Medical Officer, Mandi, District Mandi, H.P. 3. Medical Officer, F.P. Camp CHC Kotli, Sub Tehsil Kotli, District Mandi, H.P. Respondents. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mr. Desh Raj Sharma, Advocate alongwith the appellant in person.
For the respondents: Mr. Anoop Sharma, ADA .
----------------------------------------------------------------------------------------------------------------------
O R D E R:
Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Mandi, dated 28.6.2007 passed in Complaint Case No.104/2007, whereby the complaint of the complaint was dismissed by holding that the complaint is devoid of any merit, as such rejected. Parties hereinafter are being referred to as per their status in the complaint.
2. Facts of the case as they emerge from the complaint file are that the complainant had undergone sterilization operation in a family planning camp organized by the opposite parties No.1 and 2 at Kotli on 13.12.2002 and as per averments made in the complaint, opposite party No.3 was Incharge of the family planning Camp and the tubectomy operation was conducted by opposite party No.3 after taking her consent and she was assured at the time of operation that she will not have any child after 13.12.2002. The allegations in the complaint were to the effect that opposite party No.3 had not performed the tubectomy operation on her with due care and caution and as a result of negligence on his part, complainant had developed pregnancy in the year 2005 and she gave birth to a female child on 26.11.2005. Other averments are to the effect that the complainant was not interested in having any child after giving birth to a second child as she cannot maintain the third child. As such, deficiency of service had been alleged on the part of opposite parties No.1 to 3. In this background, present complaint under Section 12 of the Consumer Protection Act, 1986 was filed wherein compensation to the tune of Rs.1,00,000/- had been claimed for the negligence on the part of opposite party No.3 in performing the operation, as a result thereof she had given birth to a unwanted female child after conducting of tubectomy operation.
3. This complaint was resisted and contested by the opposite parties and they have admitted the family planning camp was organized at Kotli on 13.12.2002 and opposite party No.3 who was Incharge of the family planning camp had done the tubectomy operation after she had opted for the same and it was also pleaded that the opposite party No.3 had vast experience in carrying out the tubectomy operation and the complainant was explained the pros and cons of the said operation and failure thereof and only after written consent operation was performed with due care and caution by opposite party No.3 and opposite party No.3 had not been negligent in any manner in carrying out the said operation. It was also pleaded that the universal failure rate of the operation was upto 0.3% and the complainant had even visited the Health Centre and had sought immunization treatment after conceiving of the child which clearly establishes that the complainant was interested in having a third child and she could have opted for the medical termination of the pregnancy within 3 months of the development of the child but she did not do so, as such she could not be permitted to complain against the opposite parties. Further averments in the reply were to the effect that the complainant had not paid for the services availed by her for conducting family planning operation by opposite party No.3, however she had been paid incentive for tubectomy operation and as such complainant is not entitled for any compensation and there is no deficiency of service on the part of the opposite parties.
4. Brief result of evidence led by the parties in nutshell is that the complainant in support of her case had filed her own affidavit and placed reliance upon the certificate of sterilization operation conducted on 13.12.2002 at Community Health Centre (CHC), Kotli issued by the Medical Officer, Family Planning Camp, CHC, Kotli and certificate issued by the Panchayat Assistant, Gram Panchayat, Kot relating to giving birth of third child by her on 26.11.2005 after conducting of tubectomy operation.
5. Opposite parties No.1 to 3 in support of their case have filed affidavit of Dr. D.K.Arora, Chief Medical Officer, Mandi, and had placed reliance upon a number of documents, Annexures R.1 which pertains to the data maintained by the PHC Kotli for looking after the welfare of the pregnant women.
6. We have heard learned Counsel for the parties and gone through the record of the case.
Mr. Desh Raj Sharma, learned Counsel for the appellant argued that the order of the Forum below is not legally sustainable and the complaint had been wrongly rejected by holding that it is devoid of any merit since this is a clear case of negligence on the part of the opposite party No.3 who had performed tubectomy operation upon the complainant on 13.12.2002 during the family planning camp but she had conceived a third child and gave birth to a female child on 26.11.2005. As such, the Forum below had wrongly held that there was no negligence on the part of the doctor in the present case.
7. Mr. Anoop Sharma, learned ADA on behalf of the opposite parties had supported the order of the Forum below.
As per him, the doctor who had performed the sterilization operation upon the complainant is an experienced doctor who had done more than 5,000 tubectomy operation in his service career and there is medical literature to the effect that universal rate of tubectomy operation failure was to 0.3% and even the complainant had not taken any steps for abortion after conceiving of a child by her and record of the Health Centre reveals that she had visited Health Centre many times and opted for immunization programme.
As such, there is no infirmity in the order of the Forum below which is based on sound reasoning.
8. After hearing learned Counsel for the parties and going through the record of the case, we are of the considered view that there is infirmity in the order of the Forum below. Reason being that in the present case this fact had come on record from the averments made in the reply filed by the opposite parties which duly supported by doctor R.K. Arora, C.M.O., Mandi, wherein it is clearly mentioned that the Medical Officer who conducted the sterilization operation upon the complainant had conducted more than 5000 operations and he is an experienced Medical Office who has vast experience in the filed of conducting operations of family planning. This fact is also evident from the evidence on record that the consent of the complainant was taken for the operation and she was also explained about the pros and cons of the family planning operation. In this case, from the perusal of the documents, Annexure R.1 and the record of P.H.C., Kotli which relates to particulars relating to the newly born child and the mothers, clearly depicts that the complainant in the present case had visited the P.H.C. Kotli on 26.7.2005, 12.8.2005 and 11.10.2005. Since the child was born on 26.11.2005 which fact is clearly evident from Annexure R.1 as per entry No.40 of the P.H.C. Kotli, as such it is very clear that the complainant was not interested in termination of the pregnancy and she had sought immunization facilities from the Health Centre, Kot. From the medical literature, this fact is very clear as the Forum below had also mentioned in the order that the universal failure rate of tubectomy operation was upto 0.3%. Moreover, in the present case the complainant had given birth to a child after a period of 3 years and no complaint of any kind was made earlier relating to the operation. The plea raised in the rejoinder by the complainant was that due to religious reasons she has not opted for abortion. That also does not appeal to reasoning since she has also opted for the family planning operation and as such there is not an iota of evidence on record by which the opposite party No.3 can be held liable for medical negligence in the present case.
9. Legal position in the case of medical negligence had been well settled by the Honble Supreme Court in a number of cases, see Jacob Mathew Vs. State of Punjab and Anr., III (2005) CPJ 9 (SC) and Martin F.Dsouza Versus Mohd. Ishfaq, I (2009) CPJ 32 (SC) and Bolam rule had been followed by the Honble Supreme court in these cases and in the case of Jacob Mathew Versus State of Punjab and Anr., in para No.31 the Honble Supreme Court observed as under:-
The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence is what the law requires.
And the Apex Court in para 41 of a recent judgment in the case of Martin Dsouza Versus Mohd. Ishfaq has also observed as under:-
A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
10. Finding of the Forum below to the effect that no fee was charged from the complainant for the operation which was also held to be a ground for rejection of the complaint is not legally sustainable.
Even in the face of the law laid down by the Honble Supreme Court that even Government hospitals where medical services are provided free of charge also come within the purview of term service under the Consumer Protection Act, 1986. See Laxman Thamappa Kotgiri Vs. G.M., Central Railway and others, (2007) 4 SCC 596.
11. No other point was urged.
In view of the aforesaid discussion and facts and circumstances of the case, in our opinion, there is no negligence on the part of the opposite parties in carrying out the sterilization operation as the doctor was having a vast experience in the field of sterilization operation who had conducted more than 500 operations and the doctor cannot be held negligent simply because the things went wrong. As such, there is no reason to interfere with the order passed by the District Forum, Mandi, in Complaint Case No.104/2007, dated 28.6.2007 and the same is upheld and consequently appeal is dismissed. Our view is also supported by the decision of this Commission given in Appeal No.190 of 2008, titled Deep Ram Versus State of Himachal Pradesh and another, decided on 8.5.2009. No order as to costs.
Copy of this order be sent to the parties free of cost as per rules.
Shimla, Announced on October 24, 2011.
( Chander Shekhar Sharma) Presiding Member ( Prem Chauhan) Member