State Consumer Disputes Redressal Commission
Doctor K.Surendranath Sai Karimnagar vs Rachakonda Koteshwar, Karimnagar on 27 May, 2009
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD. FA.No.468/2006 against C.D.No.82/2002, District Forum, Karimnagar. Between: Doctor K.Surendranath Sai S/o.not known, Occupation:Doctor R/o.H.No.3-1-546, Leela Nursing Home Vavilalapalli locality of Karimnagar Town and District. ..Appellant/Opp.party And Rachakonda Koteshwar, S/o.Venkatanaraiah, age 35 years, Occupation: Labourer, R/o.Nagunur Village, Of Karimnagar Mandal and District. Respondent/Complainant. Counsel for the Appellant: : Mr.P.Jaya Prakash, A.G.P., Counsel for the Respondent. Mr.Lakshman Kumar Kasuganti QUORUM:THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT. SMT.M.SHREESHA, MEMBER. AND SRI K.SATYANAND, MEMBER. WEDNESDAY, THE TWENTY SEVENTH DAY OF MAY, TWO THOUSAND NINE ORAL ORDER:
(Per Honble Sri K.Satyanand, Hon'ble Member.) *** This is an appeal by the opposite party directed against the order of the District Forum to pay compensation of Rs.2,00,000/- with interest at 9% p.a. to the complainant.
The facts of the case are briefly as follows:
The complainant was operated upon by the opposite party for vasectomy on 10-6-1998. It seems 2 years subsequent to the said operation, his wife had given birth to a child on 11-8-2001. It is the grievance of the complainant that the said confinement was a result of the unsuccessful operation conducted by the opposite party which in turn was due to the carelessness and negligence on the part of the opposite party.
The opposite party resisted the claim saying that the operation conducted was successful and he had taken proper care and was not negligent in conducting the operation and therefore there was no deficiency to justify the claim for compensation by the complainant. It was also contended that the complainant was not a 'consumer' within the meaning of the Consumer Protection Act.
In support of his case, the complainant filed his own affidavit and relied upon documents marked as Ex.A1, sterilization certificate dated 10-6-1998 and also the certificate by the Gram Panchayat recording the brith of the child as being 11-8-2000. Opposite party also filed an affidavit and relied upon documents marked as Exs.B1 to B7.
On a consideration of the evidence adduced, the District Forum arrived at the conclusion that there was deficiency on the part of the opposite party signified by the failure of the vasectomy operation and therefore awarded compensation of Rs.2,00,000/- with interest.
Aggrieved by the said order, oppostie party filed this appeal on the grounds inter alia that the District Forum failed to appreciate the preventive and social medicine dealing with the male sterlization and the District Forum relied upon a wrong certificate dated 10-6-1998 issued by some other medical officer but not the oppostie party.
Heard the learned counsel for the appellant.
Perused the record including the documents.
The point that arises for consideration is whether there are any good grounds to interfere with the order of the District Forum, to what result?
This is an unusual case in which the complainant came up with a grievance that his wife had given birth to a child more than two years after he had undergone vasectomy operation on 10-6-1998. In order to prove the birth of the child, he strangely relied upon a very dubious document called a confirmation letter issued by the so called person in-charge of Gram Panchayat which is marked as Ex.A2. The birth certificate can be issued by any authority including the Gram Panchayat only in a statutory format under Andhra Pradesh Registration of Births and Deaths Act, 1971. In addition to this infirmity, there is yet another glaring infirmity signified by the fallacy in attributing to the opposite party that he vouchesafed to the fact that operation was completely successful as shown in Ex.A1 for the obvious reason that Ex.A1 makes a funny reading in that while the introductory part of the text of the said certificate claims to have been a document issued by the opposite party, at the fag end it was not the opposite party that signed the said certificate but someone else. The District Forum ought to have considered this internally contradictory text of Ex.A1 before accepting it as a reliable document. So whether the operation was completely successful or not remained an inconclusive fact.
Of late a lot of case law has grown around this controversy . Very recently the Hon'ble Supreme Court of India in a decision reported in IV (2005) CPJ 28 (SC) categorically held that it cannot be conclusively stated that a tubectomy operation was successful as it is clearly shown by related science that subsequent canalization was possible for various reasons. In fact the Hon'ble Supreme Court relied upon that scientific possibility and rejected the claim. No doubt this is a case of vasectomy in contra distinction to tubectomy. The failure of vasectomy is more well known than the failure of tubectomy. In other words, male sterilization is more susceptible to failure than female sterilization. This is clearly a case of failure of male sterilization. Except the conjectural finding as to negligence, there is no concrete evidence of negligence attributed to the opposite party. In other words, the complainant attributed constructive negligence to the opposite party but an order cannot rest upon such kind of constructive negligence much more so when the science dictates that the male sterilization is prown to failure in some conditions. Therefore the benefit of doubt is necessarily to be given to the opposite party in a matter like this. In the impugned order, reliance is placed on both the exhibits tendered by the complainant which are shown in the foregoing discussion as unreliable.
The law laid down by the Hon'ble Supreme Court which is followed by the National Consumer Disputes Redressal Commission in I (2008) CPJ 460 (NC) makes it abundantly clear that even in the absence of a finding of negligence cannot be slam a doctor who performs the vasectomy, none-the less the Government would as well consider payment of ex-gratia to the person who was obliged to accept an unwanted child. In view of the findings supra, the appeal is allowed setting aside the order passed against the appellant but at the same time making a request to the State Government which was responsible in conducting the family planning camp in which the complainant had come to be operated for vasectomy which turned out to be unsuccessful, to consider paying him ex-gratia in a sum of atleast Rs.2,00,000/-. This dispensation in conformity with the judicial intendment manifest in I (2008) CPJ 468 (NC) as also in the case of Javed and others v. State of Haryana and others and in the case of State of Punjab v. Shivaram decided by the Hon'ble Supreme Court.
In the result the appeal is allowed but without costs and the complaint of respondent/complainant is accordingly dismissed.
PRESIDENT MEMBER MEMBER Dated 27.05.2009