State Consumer Disputes Redressal Commission
Dr. S.K. Gupta vs Sh. Rajbir Singh on 17 August, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 291 / 2007
1. Dr. S.K. Gupta S/o late Sh. Khairati Ram
R/o J-214, Shivalik Nagar,
Ranipur, Haridwar
2. Dr. (Smt.) Sharda Swaroop
Camp Organizer
Main Hospital, BHEL
Ranipur, Haridwar
3. Dr. (Smt.) Sarita Gupta
Chief Medical Officer, Family Department and Acting Incharge
Family Planning Centre, Main Hospital
BHEL, Ranipur, Haridwar
......Appellants / Opposite Party Nos. 2 to 4
Versus
1. Sh. Rajbir Singh S/o Sh. Ramji Lal
Laboratory Assistant Grade - II, Staff No. 2272687
House No. 85, Type - II, Sector - 3
BHEL, Ranipur, Haridwar
......Respondent No. 1 / Complainant
2. Dr. P.C. Saraf
Near House No. 8, Type - 6
Sector - A, Barkhera, BHEL
Bhopal (Madhya Pradesh)
3. Dr. N.C. Agarwal, Chief Surgeon
Main Hospital, BHEL
Ranipur, Haridwar
......Respondent Nos. 2 and 3 / Opposite Party Nos. 1 and 5
Sh. M.K. Kohli, Learned Counsel for the Appellants
Sh. L.K. Upadhyay, Learned Counsel for Respondent No. 1
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Smt. Kusum Lata Sharma, Member
Dated: 17/08/2010
2
ORDER
(Per: Justice Irshad Hussain, President):
Appellants and respondent Nos. 2 and 3 were the opposite parties in consumer complaint No. 08 of 2006, decided by the District Forum, Haridwar vide order dated 07.08.2007, in favour of the complainant.
2. The broad features of the case, as emerged from the facts admitted as well as proved by the evidence on record are that under the Family Welfare Programme, State of Uttarakhand organized a camp at Family Welfare Planning Centre of the hospital of BHEL, Ranipur, Haridwar on 0809.2003 and in that camp, the complainant voluntarily underwent sterilization (vasectomy) operation performed by Dr. K.K. Tamta, a surgeon in the employment of the Family Welfare Department of the State of Uttarakhand. Complainant being an employee of BHEL was, however, issued certificate of his having undergone sterilization operation on 08.09.2003 by Dr. S.K. Gupta, a surgeon in BHEL hospital for the complainant to avail special leave for 8 days. Inspite of the sterilization operation, complainant's wife Smt. Suman Singh conceived and gave birth to a healthy male child on 05.09.2004 at Dr. Seema Gupta's Maternity Home, Arya Nagar Chowk, Jwalapur. After sterilization operation, the complainant experienced pain in his testicles, for which he received treatment in BHEL hospital and other places including the Himalayan Institute of Medical Sciences, Swami Rama Nagar, Doiwala, Dehradun, where the complainant after preliminary tests, was scheduled to undergo surgery to relieve him of his disease in the first week of February, 2004, but the surgery could not be performed due to swelling and he was suggested to have semen test. The complainant, however, had not undergone any surgery and remained content with the treatment 3 received by him and his wife gave birth to a healthy male child. The complainant and his wife did not opt for medical termination of unwanted pregnancy, as they were legally entitled to have it and, therefore, the male child born to them ceased to be an unwanted child.
3. The complainant filed the consumer complaint against five doctors of the BHEL hospital, alleging medical negligence in his sterilization operation and claimed that he had spent sum of Rs. 15,000/- in his treatment; may most likely incur Rs. 10,000/- in his operation in future; may also incur sum of Rs. 2,00,000/- to brought-up newly born baby and suffered mental and physical agony and also social stigma, entitling him for damages of Rs. 2,50,000/- and that way, laid claim for sum of Rs. 4,75,000/- against the opposite parties.
4. The District Forum, on an appreciation of the material on record, accepted the complainant's allegation that due to medical negligence, his sterilization operation has failed and, thus, held responsible Dr. Tamta for failure of the operation. Therefore, the consumer complaint was allowed with costs of Rs. 2,000/- and the complainant was further held entitled to Rs. 15,000/- towards expenses of the medical treatment; Rs. 10,000/- towards expenses of future operation; Rs. 2,00,000/- towards expenses to be incurred to brought-up the new born child and Rs. 50,000/- towards mental and physical agony, total being Rs. 2,75,000/-. The order was passed against the opposite parties, but considering that they all being the employees of the BHEL, their employer - BHEL was vicariously held liable to pay the amount of compensation so awarded, although BHEL was not impleaded as another opposite party. Dr. Tamta was also not made a party in the consumer complaint.
45. We have heard the learned counsel for the parties and carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case and at the outset, it may be stated that the order impugned suffer from factual and legal infirmity and the appeal, thus, having merit, is fit to be allowed and the consumer complaint is liable to be dismissed.
6. The reasons for our above decision are that the learned counsel for the appellants rightly argued that the male child born to the complainants despite sterilization operation, ceased to be an unwanted child, in view of the fact that the complainant and his wife did not avail of a valid and legal option for medical termination of pregnancy under the provisions of the Medical Termination of Pregnancy Act, 1971 and, therefore, the District Forum was not at all justified to award compensation by way of expenses to be borne in future by the complainant to brought-up newly born male child. This apart, in the present case, the sterilization operation of the complainant was performed as part of Family Welfare Programme of the Government of Uttarakhand and, therefore, no consideration for availing this service by the complainant has been paid. Therefore, neither the complainant, nor his wife is consumer of services, as defined in the Consumer Protection Act, 1986, wherein no action lies against a service provider if the services availed of, are not paid for, as is the legal position enunciated by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Shantha and others; III (1995) CPJ 1 (SC) = (1995) 6 SCC 651.
7. Even otherwise, as argued by the learned counsel for the appellants, it is well settled that the methods of sterilization, so far known to medical science, are not 100% safe and secure, as has been held by the Hon'ble Apex Court in the matter of State of Punjab Vs. 5 Shiv Ram and others; IV (2005) CPJ 14 (SC) = AIR 2005 SC 3280. The Hon'ble Court stressed that unless and until it is cogently proved that the operating doctor was negligent in the performance of the job, no case of medical negligence can sustain merely on the ground of failure of sterilization operation. By now, it is also well settled preposition that onus to prove any medical negligence is on the complainant, who alleges medical negligence. As pointed out by the learned counsel for the appellants, no medical expert evidence, much less medical literature, has been produced to show that the sterilization operation of the complainant was not done according to the prescribed mode or standard medical protocol prevalent on the relevant date, i.e., 08.09.2003. The District Forum did not consider the case in the light of the settled legal preposition and merely on the arguments of the learned counsel for the complainant, returned a finding of medical negligence, by observing that perhaps in performing the vasectomy operation, the surgeon due to negligence failed to cut or put excision to one or both sperm ejaculatory ducts (vas deferens), as a result of which, there remained possibility of their union, resulting in the failure of the operation. There was absolutely no material on record by way of opinion of any medical expert that in the case of the complainant, the failure of the sterilization operation is attributable to the negligence of the surgeon who performed sterilization operation of the complainant. Therefore, merely on a hypothetical basis, the District Forum was not at all justified to return a finding that the operating surgeon - Dr. Tamta made medical negligence in performing the sterilization operation of the complainant. The Hon'ble Supreme Court in the case of Martin F.D'Souza Vs. Mohd. Ishfaq; (2009) 3 SCC 1, recently examined the question of medical negligence and among other things, it was observed as under:
6"34. 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. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation, vide Achutrao Haribhau Khodwa Vs. State of Maharashtra or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
xxx xxx xxx
40. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse."
8. In the context of the case in hand, in the absence of expert evidence whatsoever, the surgeon who performed the vasectomy operation, therefore, could not have been held to have not exercised his skill with care and competence and on account of mere failure of sterilization operation, which is not 100% safe and secure, the doctor could not have been held liable for medical negligence in performing the sterilization operation of the complainant. In the peculiar facts of the case, we see no merit in the argument of the learned counsel for the complainant that the District Forum was justified in drawing an 7 inference of medical negligence on the basis of the fact that the wife of the complainant conceived only on account of the fact that the sperm ejaculatory ducts were not cut and tied by the operating surgeon due to his negligence and, therefore, on the principle of res ipsa loquitur, the operating doctor was rightly held liable for making medical negligence in performing the sterilization operation of the complainant.
9. For the reasons aforesaid, we have no hesitation in accepting the argument of the learned counsel for the appellants and to hold that there was no reliable evidence on record to prove that Dr. Tamta made medical negligence in performing vasectomy operation of the complainant on 08.09.2003 and that being the case, the complainant was not entitled to claim any damages. It shall not be out of place to mention that for the testicle pain suffered by the complainant, the treatment was provided by the BHEL hospital, as is evident from the material on record and the complainant was not made to pay any charges for it. It was also pleaded by the appellants that as and when an employee of the BHEL is referred to an outside doctor for treatment, the expenses are borne by the employer - BHEL itself according to the rules and it is of significance that the complainant has not claimed that he had not been reimbursed for the expenses incurred by him in getting the treatment for his ailment after the operation from elsewhere including Himalayan Institute of Medical Sciences, Swami Rama Nagar, Doiwala, Dehradun. Therefore, the complainant was also not entitled to be reimbursed to the tune of Rs. 15,000/-, alleged to have been spent by him in his treatment. There is nothing on record to indicate that the complainant shall undergo some surgery to relieve of his ailment arising out of sterilization operation and, therefore, there was also no justification to award expected expenses of Rs. 10,000/- to him under this head. At any rate, the complainant 8 was not entitled to any compensation and the District Forum fell in error in allowing the consumer complaint and awarding compensation as aforesaid to the complainant vide impugned order dated 07.08.2007.
10. In view of above, this appeal succeed and is to be allowed accordingly.
11. Appeal is allowed. Order impugned dated 07.08.2007 of the District Forum is set aside and consumer complaint No. 08 of 2006 is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE IRSHAD HUSSAIN) K