State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd., vs Savitri Devi on 17 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.369 of 2008 Date of Institution: 31.01.2008 Date of Decision: 17.08.2012 1. New India Assurance Co. Ltd., Gurgaon (through New India Assurance Company Limited through its Manager (Legal), Regional Office, SCO 36-37, Sector 17-A, Chandigarh. 2. Dr. Mrs. Kamlesh Aryan, Aryan Hospital Old Railway Road, Gurgaon. 3. Dr. P.R. Aryan, Proprietor/Director/Incharge of Aryan Hospital, Old Railway Road, Gurgaon. Appellants (Ops) Versus 1. Savitri Devi w/o Sh. Kameshwar son of late Shri Rajender Shahu 2. Kameshwar son of Rajinder Shahu Both residents of H.No.WZ-38 Bijwason Road, New Palam Vihar, Phase-III, Gurgaon. Respondents (Complainants) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Rajneesh Malhotra, Advocate for appellants. Respondents exparte. O R D E R
Justice R.S. Madan, President:
Challenge in this appeal is to the order dated 30.10.2007 passed by District Consumer Forum, Gurgaon whereby complaint filed by respondents-complainants alleging medical negligence and deficiency in service on the part of the opposite parties No.1 and 2 (appellants No.2 and 3 herein) in conducting tubectomy operation of the complainant No.1 Savitri Devi, was accepted and following direction was issued to the opposite parties:-
We, therefore, in these circumstances allow this complaint and direct the opposite parties to pay Rs.50,000/- to the complainant No.1 as damages together with interest at the rate of 9% per annum from the date of filing this complaint till the actual payment is made and are also burdened to pay Rs.5,000/- on account of cost of litigation. The liability to pay would be joint as well as several of all the opposite parties. order be complied with within one month from the date of receipt of the copy of this order.
The grievance of the complainants before the District Consumer Forum was that tubectomy operation of complainant No.1 Savitri Devi was conducted by the opposite party No.1 on 22.06.2001 by charging Rs.20,000/- but despite that Savitri Devi became pregnant. Urine Test Report dated 09.03.2003 conducted by Dr. Mrs. Monika Singh confirmed the pregnancy of the complainant Savitri Devi. Thus, alleging it a case of medical negligence and deficiency in service on the part of the opposite parties No.1 and 2, the complainants invoked the jurisdiction of the District Consumer Forum seeking compensation for the maintenance of their third child.
Upon notice, the opposite parties denied the claim of the complainants. The probable complications arising from the operation were explained to the husband of the patient before operation was conducted and he had signed the consent form in token of having understood the possibilities of those complications arising out of the operation. While conducting the tubectomy operation of Savitri Devi, the tubes were found twisted and swollen and it was observed that there may be more chances of failaure of tubectomy in that particular case against the normal failure rate of 0.3% in tubectomy operation. After the tubectomy operation the complainant No.1 conceived and got herself checked from a doctor who was simply a BAMS doctor and was not competent to handle such high risk pregnancy cases and reported that the complainant No.1 was alleged to be having about six months pregnancy. Generally ladies come to know about the pregnancy when they miss the period and other symptoms which such ladies express during the conception period and if it is detected earlier, it could have been terminated much earlier within 12 weeks of the pregnancy. It was a failure on the part of the complainants, which resulted in the birth of fourth unwanted child after the operation. It was prayed that the complaint merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite parties have come up in appeal.
Heard.
It is contended on behalf of the appellant that the complainant is not entitled for any compensation because the failure of tubectomy operation of the respondent-complainant No.1 does not fall within the definition of medical negligence and deficiency in service because a doctor cannot give 100% guarantee of success of the sterilization. In support of his argument learned counsel for the appellants has referred to the judgment rendered by Honble Supreme Court in case STATE OF PUNJAB Versus SHIV RAM AND OTHERS, (2005) 7 Supreme Court Cases 1, wherein it has been held that:-
25. We are, therefore, clearly of the opinion 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. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolams test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.
26. The cause of failure of the sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at subsequent operation of sterilization.
The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation.
27. Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court in State of Haryana vs. Santra wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilization operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts.
28. The methods of sterilization so far known to medical science which are most popular and prevalent 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 can become pregnant due to natural causes . Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub-section (2) of Section 3 provides:
Explanation II- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
29. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.
30. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone the sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.
The observations made by the Honble Supreme Court in STATE OF PUNJAB Versus SHIV RAM AND OTHERS case (Supra) would fully apply to the facts of the instant case. Hence, we feel that there was no medical negligence and deficiency in service on the part of the opposite parties No.1 and 2. Hence, the impugned order is not sustainable in the eyes of law.
For the reasons recorded above, this appeal is accepted, the impugned order is aside and the complaint is accordingly dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 17.08.2012 President B.M. Bedi Judicial Member