State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs Smt. Anita on 10 October, 2022
Appeal No. 43 of Chief Medical Officer 10.10.2022
2019 Vs.
& Smt. Anita
Appeal No. 58 of AND
2019 ICICI Lombard Gen. Ins. Co. Ltd
Vs.
Smt. Anita & Ors.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 18.02.2019
Date of final hearing: 20.09.2022
Date of Pronouncement: 10.10.2022
First Appeal No. 43 / 2019
Chief Medical Officer
Office Roshnabad, Haridwar
Post Roshnabad, Tehsil and District Haridwar
(Through: Sh. Ashok Dimri, A.D.G.C. (Civil), Advocate)
.....Appellant
VERSUS
Smt. Anita W/o Sh. Kala Singh
R/o Sagrawala, Jagjeetpur
Post Office Kankhal, District Haridwar
.....Respondent in Person
AND
Date of Institution: 03.04.2019
Date of final hearing: 20.09.2022
Date of Pronouncement: 10.10.2022
First Appeal No. 58 / 2019
1. ICICI Lombard General Insurance Company Ltd.
Lombard House-414, Veer Sarvarkar Road
Near Siddhiveenayak Mandir, Prabha Devi Marg, Mumbai
2. Branch Manager
ICICI Lombard General Insurance Company Ltd.
Branch Office, Surya Complex -3rd Floor, Ranipur Morh
Near Chandracharya Chowk (Opp. V-Mart), Haridwar
Through its Authorized Signatory Sh. Siddharth Jain
C/o ICICI Lombard General Insurance Company Ltd.
Eldeco Corporate, 4th Floor, Chamber-1, Vibhuti Khund
Gomti Nagar, Lucknow
(Through: Sh. Deepak Ahluwalia, Advocate)
.....Appellants
1
Appeal No. 43 of Chief Medical Officer 10.10.2022
2019 Vs.
& Smt. Anita
Appeal No. 58 of AND
2019 ICICI Lombard Gen. Ins. Co. Ltd
Vs.
Smt. Anita & Ors.
VERSUS
1. Smt. Anita W/o Sh. Kala Singh
R/o Sagrawala, Jagjitpur, Post Office Kankhal, District Haridwar
.....Respondent No. 1 in Person
2. In-Charge Medical Officer C/o C.H.C. (State Health Centre)
Bhadrabad- Block, District Haridwar
3. Chief Medical Officer
District Hospital, Roshnabad, District Haridwar
(Through: Sh. Ashok Dimri, A.D.G.C. (Civil), Advocate)
.....Respondent Nos. 2 & 3
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
These appeals have been directed against the judgment and order dated 18.01.2019 passed by the District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 111 of 2010 styled as Smt. Anita vs. In-charge Medical Officer, C.H.C. Bhadrabad and others, wherein and whereby the learned District Commission has allowed the complaint case.
2. The facts giving rise to the appeals in hand, in brief, are as such that the respondent - (in short 'the complainant') had undergone family planning (sterilization) operation by the opposite party No. 1 with the interest to keep her family short (who already had five children in her family) and to provide better education to her children. After the above 2 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
operation, the complainant later on, missed her menstrual cycle and felt that perhaps she had become pregnant, then she visited Dhanvantri Ultrasound X-ray center, Haridwar where she knew that she was having 12 week's pregnancy due to the negligence of the opposite party No. 1 & 2; a notice was also dispatched to the opposite parties, but in vein, hence, the present complaint was filed before the District Commission for the alleged medical negligence.
3. The opposite party No. 1 did not appear before the District Commission, hence, an order to proceed the complaint case ex-parte against the opposite party No. 1 was passed on 24.05.2010.
4. The opposite party No. 2 (appellant in the appeal No. 43 of 2019) filed written statement alleging that prior to the operation, a consent letter / form was signed by the complainant in which it was clearly mentioned that "sometimes these vasectomy operations exceptionally fail and in that situation the person getting operated will not file any suit". After this consent letter, the complainant does not have any right to file a suit; it is also pleaded that the vasectomy operation of the complainant was done by telescopic method, in which there is minimum surgery, but in relation to the above method 0.3% unsuccessful cases are also mentioned in the book of Jeffcatt Austratic Gynecology, therefore, the complainant is not entitled to any relief.
5. The opposite party Nos. 3 & 4 (ICICI Lombard General Insurance Company) has also filed an appeal No. 58 of 2019 against the same judgment before the Commission.
3 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
6. In the written statement, the opposite party Nos. 3 & 4 have denied the averments made in the complaint and pleaded that the amount which was fixed under the Memorandum of Understanding entered between the opposite parties and Government of India through Ministry of Health & Family Welfare, has already exhausted and paid.
7. The District Commission / Forum after taking into consideration the material available on record passed the order dated 18.01.2019, whereby it held as under:-
"ifjokn Lohdkj fd;k tkrk gSA foi{khx.k dks vknsf"kr fd;k tkrk gS os vkns"k dh frfFk ls ,d ekg ds Hkhrj ifjokfnuh dks 35]000@& :0 dh /kujkf"k ekufld {kfr ds :i esa rFkk 50]000@& :0 dh /kujkf"k lgh ulcanh u djus ds dkj.k iqu% xHkZ/kkj.k dh lac/a k esa vkSj 3]000@& :0 dh /kujkf"k okn O;; ds :i esa rFkk 2]000@& :0 dh /kujkf"k vf/koDrk "kqYd ds :i esa dqy /kujkf"k eqc0&90]000@& :0 dk Hkqxrku e; 06 çfr"kr okf'kZd C;kt dh nj ls] okn ;ksftr djus dh frfFk ls vafre vnk;xh rd ifjokfnuh dks vnk djuk lqfuf"pr djsAa "
8. Aggrieved by the aforesaid order of the District Commission, the appellants have preferred the present both appeals, which have arisen from the same judgment, therefore, in the interest of justice, both the appeals are being decided together.
9. In appeal No. 43 of 2019, the appellant (the Chief Medical Officer) has preferred the present appeal contending that the learned subordinate Commission did not take cognizance of the fact that prior to the operation, 4 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
a consent letter / form was signed by the complainant in which it was mentioned that sometimes these vasectomy operations exceptionally fail and in that situation the person getting operated will not file any suit; the subordinate Commission has also overlooked the fact that the vasectomy of the complainant was done by telescopic method, in which there is minimum surgery, but in relation to the above method 0.3% unsuccessful cases are also mentioned in the book of Jeffcatt Austratic Gynecology, therefore, the impugned judgment is not tenable.
10. In appeal No. 58 of 2019, the appellants (ICICI Lombard General Insurance Co. and its Manager) have averred that the learned District Commission has failed to take cognizance that in terms of the Memorandum of Understanding, the appellants had exhausted its liability and paid the amount, hence the appellants are not liable to pay the awarded amount.
11. The complainant herself has placed her submission that even after the sterilization operation, she had given birth of a baby child, hence the sufficient amount be awarded to maintain the baby child.
12. We have perused the appeals, reply of the complainant and the impugned judgment.
13. The question of consideration before us is whether there was any medical negligence on the part of the doctor / appellants or not.
14. It is an admitted fact that the complainant had undergone family planning (sterilization) operation at Community Health Centre, Bahadrabad on 16.01.2009. It is not disputed that the complainant has 5 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
several time contacted to opposite party No. 1 that she had conceived, even after sterilization. It is doubtedly proved that a baby child was born to the complainant after family planning (sterilization) operation. It is also proved on record that the complainant was having five children (Four boys and one girl) in her family and her husband is a labourer, who daily earns by doing unskilled manual work for wages.
15. It was well settled that methods of sterilization / vasectomy operations are not 100% safe and secure. It is true that the vasectomy of the complainant was conducted by telescopic method in which there is minimum surgery and in such surgery by adopting the vasectomy method, 0.3% unsuccessful cases are also mentioned in the book of Jeffcatt Austratic Gynecology.
16. The Hon'ble Apex Court in the case of State of Punjab vs. Shiv Ram and others; IV (2005) CPJ 14 (SC), has held that unless it is proved by the cogent evidence on record that the operating doctor was negligent in the performance of the job assigned to him / her, no case of medical negligence can be sustained merely on the ground of failure of sterilization operation. It was further held that merely because woman having undergone sterilization operation became pregnant and delivered child, operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or child. It is worth to mention here that no medical expert evidence has been produced on record to show that the sterilization operation of the complainant was not carried out as per the prescribed method. The District Forum has nowhere in its impugned judgment recorded any finding on the point of medical negligence on the part of the operating doctor and in the absence of such a finding, the District Forum was not at all justified in allowing the consumer complaint.
6 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
17. The Hon'ble National Commission in the case of Kamla Kesharwani vs. Superintendent, Shyamshah Medical College and Gandhi Memorial Hospital and others; III (2009) CPJ 17 (NC), has held that there is no guarantee that after tubectomy operation, the child birth will not take place. It was also held that the failure of tubectomy operation has been explained in medical texts. It was also held that, "the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. Inspite 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. Section 3(2) Explanation II provides that 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".
18. This Commission in its decision dated 17.08.2010 rendered in First Appeal No. 291 of 2007; Dr. S.K. Gupta and others vs. Sh. Rajbir Singh, under the similar circumstances, has held that the case of medical negligence against the operating surgeon is not made out and the complainant was not held entitled to any relief and the order passed by the District Forum, allowing the consumer complaint, was set aside.
19. We may also advantageously refer to a decision dated 03.12.2008 of the Hon'ble National Commission given in the case of The Chief Executive Officer and others vs. Sagunabai Navalsing Chavan; 2011 (1) CCC 286 (NS). The facts of the reported case were that the complainant underwent tubectomy operation and even after the tubectomy operation, she became pregnant and delivered a female child. The District Forum 7 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
awarded compensation of Rs. 500/- per month towards the expenses of the child upto the age of 18 years and directed the opposite party Nos. 1 to 4 to pay jointly and severally sum of Rs. 1,15,000/- as compensation along with cost of Rs. 5,000/- to the complainant. The Hon'ble National Commission held that the tubectomy operation was performed free of cost and the complainant got incentive from the Government for undergoing operation. It was also held that once the complainant has conceived, she could have approached same hospital for undergoing MTP, which she has not done. As per the Medical Literature, there are chances of failure of sterilization and recanalisation could take place due to natural causes. The order of the Foras below was set aside and the complaint was dismissed. In the instant case also, the sterilization / tubectomy operation of the complainant was done at the Government hospital free of cost.
20. Learned counsel for the complainant - Smt. Shashi cited a decision of the Hon'ble Apex Court given in the case of State of Haryana and others vs. Smt. Santra; I (2000) CPJ 53 (SC). In the said case, the documents placed on the file as well as testimony of PWs proved that the medical officer who conducted the operation has threw the care and caution to the winds and focused attention to perform as many as operations as possible to build record and earn publicity. It is in such settling that a poor lady obsessed to plan her family, was negligently operated upon and treated and left in the larch to suffer agony and burden, which was made to believe was avoidable. In the said case, Smt. Santra already had seven children. In such circumstances, compensation was awarded. In the instant case, there is no evidence to prove that the operating doctor had committed medical negligence in the sterilization operation of the complainant. It may not be out of place to mention here that the complainant had undergone sterilization operation on 18.10.2015 and she gave birth to a female baby 8 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
on 22.01.2009, i.e., after a period of more than three years' from the date of operation. Even otherwise, the decision cited on behalf of the complainant does not hold good in view of the latest law on the subject, as discussed above. This apart, the decision given in the case of State of Haryana and others (supra) is two Judges' Bench decision, whereas the decision given in the case of State of Punjab (supra) is a three Judges' Bench decision headed by the then Hon'ble Chief Justice of India and in the case of State of Punjab (supra), the Hon'ble Apex Court has discussed its earlier decision given in the case of State of Haryana and others (supra) and it was held that in the case of State of Haryana and others (supra), 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. It was in such circumstances that a case of medical negligence was found and a decree for compensation in tort was held justified. Thus, the said case proceeded on its own facts. The facts of each and every case are different and every case has to be decided on its own merit. It is also not denied that the prior to the operation, a consent letter / form was signed by the complainant.
21. In our view when the consent letter / form is written down between the doctors / medical department and the complainant, wherein it was clearly mentioned that sometime these vasectomy operations exceptionally failed and in that situation the person getting operated will not file any suit. As per the consent letter when the method of sterilization / vasectomy operations are not 100% safe and secure, there are 0.3% unsuccessful cases and there is also no proof that there had been any negligence on the part of the doctor, who has conducted such operation, then in such circumstances and in the light of the above mentioned case laws, we are of the considered 9 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
view that the learned District Commission has not properly considered the law on the subject and has erred in allowing the consumer complaint vide impugned order, which suffers from vice of infirmity and cannot legally be maintainable and is liable to be set aside. Consequently, the appeal filed by the Chief Medical Officer (appeal No. 43 of 2019) deserves to be allowed.
22. It is pertinent to mention here that appellants - insurance company (in the appeal No. 58 of 2019) have specifically stated that the maximum liability of the insurance company as per Memorandum of Understanding executed between Government of India through Ministry of Health & Family Welfare and ICICI General Insurance Company has already been exhausted, as the insurance company has already discharged all the complaints by paying the maximum amount payable under the policy to the State Government for that particular annual term. However, since there was no cogent and reliable evidence on record to prove medical negligence on the part of the doctor conducting vasectomy operation, therefore, the District Commission had no jurisdiction in allowing the consumer complaint. Consequently the appeal No. 58 of 2019 also deserves to be allowed.
23. The appeal No. 43 of 2019 and appeal No. 58 of 2019 are allowed. The impugned judgment and order dated 18.01.2019 passed by the District Commission is set aside and the consumer complaint filed by the complainant is hereby dismissed. No order as to costs.
24. In the interest of justice, it is directed that the complainant - Smt. Anita shall have the liberty to file a fresh case for damages in appropriate court having its jurisdiction to entertain it.
10 Appeal No. 43 of Chief Medical Officer 10.10.2022 2019 Vs. & Smt. Anita Appeal No. 58 of AND 2019 ICICI Lombard Gen. Ins. Co. Ltd Vs. Smt. Anita & Ors.
25. Statutory amount deposited by the appellant(s) (of both the appeals) be returned to the appellant(s).
26. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. A copy of the Order be sent to the concerned District Commission for record and necessary information.
27. File be consigned to record room along with a copy of this Order. A copy of the Judgment be kept in Appeal No. 58 of 2019.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 10.10.2022 11