State Consumer Disputes Redressal Commission
C.M.O.H., Jalpaiguri vs Smt. Debika Lohar on 30 January, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/954/2012 (Arisen out of Order Dated 21/09/2012 in Case No. Complaint Case No. CC/21/2010 of District Jalpaiguri) 1. The C.M.O.H. Jalpaiguri Dist. Jalpaiguri, West Bengal. 2. Dr. S. Halder M.O., Birpara State General Hospital. ...........Appellant(s) Versus 1. Smt. Debika Lohar W/o Sri Shibnath Lohar, Singhania Tea Estate, P.O. Birpara, Dist. Jalpaiguri. 2. Dr. R. P. Das Medical Officer,Durgapur Sub-Division, Hospital,Durgapur,Burdwan. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Atindra Kumar Mukherjee, Advocate For the Respondent: In-Person/, Advocate ORDER
30/01/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Jalpaiguri in case no.CC 21 of 2010 allowing the complaint and directing the OP No.3 to pay Rs.5 lakh as compensation to the Complainant for mental agony and litigation cost of Rs.20,000/-.
The case of the Complainant/Respondent, in short, is that she underwent an operation of tubectomy on 07/04/05 at Birpara State General Hospital, District-Jalpaiguri. She was told that the operation was successful and there was no need for any contraception in future. In the month of October 2007 she felt some pain in the abdomen and contacted the OP who told that she was not pregnant, but her period stopped due to anemia. A few months later the Complainant again went to the OP, but they tried to avoid her and even stopped talking to her. Thereafter on 30/07/08 she delivered a female child. Although no child is unwanted, but the Complainant already has children and this baby would only add to the financial liability of the family. The Complainant one again went to the OP, but there was no response. The Complainant being a worker of a tea garden had to remain away from her place of work and it further added to the cost of the family for her welfare and upbringing. Under the circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the Complainant underwent tubectomy, but thereafter she conceived. It is contended that there cannot be any guarantee as to 100% success in such a case. It is submitted that the Complainant bore the child and, therefore, the baby was not unwanted. It is submitted that no assurance was given by the surgeon as to 100% success and no negligence has been proved in performing the operation by the surgeon. The Learned Counsel has referred to the decisions reported in IV (2014) CPJ 147 (NC) [Govt. of NCT of Delhi & Ors. vs. Babita]; IV (2005) CPJ 14(SC) [State of Punjab vs. Shiv Ram & Ors.]; IV (2014) CPJ 165 (NC) [Subash Prasad vs. Dr. (Mrs.) Vidya @ Vidya Rani Singh].
None appeared on behalf of the Respondent.
We have heard the submission made by the Learned Counsel for the Appellant and perused the papers on record. The Learned District Forum recorded that the operation was performed in the Hospital on 07/04/05 by trained and experienced doctor as a part of welfare activities and sterilization programme was organized at Birpara State General Hospital. In the case of Govt. of NCT of Delhi & Ors. vs. Babita (supra) it has been held that having gathered knowledge of conception in spite of having undergone sterilization operation, if the couple opted for bearing the child, it ceased to be an unwanted child and the compensation for maintenance and upbringing of such a child could not be claimed. In the case of State of Punjab vs. Shiv Ram & Ors. (supra) it has been held by the Hon'ble Apex Court that in case of birth of child after sterilization operation merely because the 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 of child. In the case of Subash Prasad vs. Dr. (Mrs.) Vidya @ Vidya Rani Singh (supra) it has been held by the Hon'ble National Commission that failure of tubectomy is not negligence and the party cannot claim compensation and if the couple opts for bearing the child, it ceases to be unwanted child.
In the petition of complaint it has been admitted that the child was not unwanted and it has also been averred that after the pregnancy she went to the OP. She decided to bear the baby and gave birth to a female baby. There is also nothing on record to show that there was any negligence on the part of the operating surgeon. The claim for compensation, therefore, is not maintainable. The Learned District Forum was not justified in allowing the complaint.
The Appeal is allowed. We set aside the impugned judgment and order. The petition of complaint is dismissed.
[HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER