State Consumer Disputes Redressal Commission
Chief Medical Officer vs Smt.Preeti Dahaat on 1 August, 2023
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 35 OF 2018 (Arising out of order dated 23.05.2017 passed in C.C.No.84/2015 by District Commission, Damoh) 1. CHIEF MEDICAL & HEALTH OFFICER, GOVERNMENT DISTRICT HOSPITAL, DAMOH (M.P.) 2. DR. DIWAKAR MISHRA, COMMUNITY HEALTH CENTER (SAMUDAYIK SWASTHYA KENDRA,) PATERA, DISTRICT-DAMOH (M.P.) ... APPELLANTS. Versus SMT. PREETI DAHAT, W/O SHRI GAURISHANKAR DAHAT, R/O VILLAGE-MANGOLPUR, TEHSIL-PATERA, DISTRICT-DAMOH (M.P.) .... RESPONDENT. BEFORE : HON'BLE SHRI A. K. TIWARI : PRESIDING MEMBER
HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES : Shri Mukesh Shrivastava, learned counsel for the appellants. None for the respondent. O R D E R (Passed On 01.08.2023)
The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:
This is an appeal by the opposite parties/appellants against the order dated 23.05.2017 passed by the District Consumer Disputes Redressal Commission, Damoh (for short 'District Commission) in C.C.No.84/2015 whereby the complaint filed by the complainant/respondent has been allowed.
-2-2. The facts of the case as stated by the complainant/respondent on 19.11.2011 under the scheme of Government of MP underwent TT (Tubectomy)/Sterilization operation in opposite party no.2 Community Health Center, Patera, District-Damoh. It is alleged that the opposite party no.2 in order to achieve their target negligently performed the operation which became failed and on 10.06.2012 she found to be pregnant of 32 weeks. She already had three children and she is unable to maintain those children and therefore, she underwent TT operation but she gave birth to a fourth child. It is alleged that the State Government in case of failure of sterilization operation bound to pay compensation as per rules but despite written application to that effect, no compensation was paid by the opposite parties. The complainant therefore alleging deficiency in service on part of the opposite parties filed a complaint before the District Commission seeking relief of Rs.90,000/-.
3. The opposite parties in their reply before the District Commission submitted that the operation was performed carefully and cautiously. As per medical science there is 3% chances of failure of sterilization operation which depends upon the natural process and body structure. If the complainant does not want any child then after pregnancy she could have come for medical termination of pregnancy (MTP) but she conveyed this fact after 20 weeks. For all of this, the complainant herself is -3- responsible. Between the complainant and the opposite parties there is no relation of complainant and service provider. The complainant did not pay any fees for the said operation. The complainant is not entitled to get compensation of Rs.30,000/- from the Government. Before the operation, the complainant was pregnant and by suppressing this material fact she underwent the said operation. It is thus prayed that the complaint be dismissed.
4. The District Commission holding the opposite parties deficiency in service allowed the complaint directing the opposite parties jointly and severally to pay Rs.30,000/- to the complainant within a period of one month. Compensation of Rs.10,000/- is also directed to be paid within one month. It is also directed that if the aforesaid amount is not paid within one month, the amount shall carry interest @ 6% p.a. from the date of order till payment. Cost of Rs.2,000/- also awarded.
5. Heard the arguments advanced by learned counsel for the parties. Perused the record.
6. Learned counsel for the opposite parties/appellants argued that that the District Commission did not consider this important aspect that the complainant undergone operation on 19.11.2011 and on 10.06.2012 she found to be pregnant of 32 weeks. Learned counsel reiterated the same facts as stated in the reply that as per medical science there is 3% chances -4- of failure of sterilization operation which depends upon the natural process and body structure. If the complainant does not want any child then after pregnancy she could have come for medical termination of pregnancy (MTP) but she conveyed this fact after 20 weeks. He further argued that with regard to compensation for failure of sterilization operation, in case she conceived, she had to inform within 90 days compulsorily but in the present matter she informed the opposite parties/appellants after 224 days. He argued that the District Commission has erroneously passed the impugned order which deserves to be set-aside.
7. The complainant has filed her affidavit, along with documents C-1 to C-5 in support of her complaint. On behalf of opposite parties, affidavit of Dr. A. K. Badonia, Chief Medical & Health Officer has been filed.
8. After hearing learned counsel for the parties and on perusal of the record, we find that it is an admitted position that the complainant underwent sterilization operation in a camp organized by District Hospital, Damoh in Community Health Centre, Patera, District-Damoh on 19.11.2011 and on 10.06.2012 she found to be pregnant of 32 weeks and she gave birth to a child on 24.07.2012.
9. The complainant has filed documents C-1 to C-5, C-1 is sterilization operation certificate. C-2 is USG report dated 10.06.2012 of -5- Damoh X-Ray Sonography Centre of Dr. O. P. Dubey wherein the complainant was shown pregnant of 31 weeks and six days i.e. 32 weeks.
C-3 is copy of film. C-4 is birth certificate of the child.
10. From the letter dated 01.10.2012 (C-5) of the Chief Medical and Health Officer, Damoh addressed to the complainant, we find that in the said letter it has been specifically written that the complainant had given wrong information before operation to the doctors. In the said letter it is also written that at the time of operation you were informed that in case of pregnancy, you have to consult the doctor within 15 days but you failed to do so. In the consent letter before operation, the complainant had given consent that in case of any failure she will not claim against the concerning operating surgeon.
11. As per ultrasonography report dated 10.06.2012 the complainant was 32 weeks pregnant and the operation was performed on 19.11.2011 which implies that the complainant was already became pregnant when the sterilization operation was performed and she must have given wrong information about her Last Menses Period (LMP). In case of pregnancy, after 19.11.2011 she must have lost her menses but she did not make any complaint nor consulted to the doctor and waited till 10.06.2012.
12. With regard to compensation for failure of sterilization operation, she had to inform the concerned authorities within 90 days compulsorily but -6- in the present matter she informed the opposite parties/appellants after 224 days. There is negligence on her part also.
13. Since the complainant undergone sterilization operation in a camp organized by the District Hospital, free of cost, therefore, the complainant cannot be termed as a consumer. Complainant in her complaint has mentioned that operation was performed in a family planning camp organized by Health Department of Government of Madhya Pradesh under the guidance and supervision of Chief Medical and Health Officer, Damoh in Community Health Centre, Patera. Operations in this camp are not only free of cost but sometimes the patients are paid some money as incentive. The complainant has also not alleged anywhere about payment done by her nor has annexed any receipt of payment done for operation. Such service under the Act is not a service and therefore, the question of deficiency in service does not arise.
14. In this regard, this Commission in Smt. Rajbai Vs M. P. Shashan Sachiv, Lok Swasthya Avam Pariwar Kalyan Vibhag & Ors. I (1999) CPJ 578 in paragraph 7 has held that operation performed in family planning camp organized by Govt. of M.P. are free of cost and it is not the allegation of the complainant that she paid any charges for the same, therefore she cannot be termed as a 'consumer'. Consumer's complaint -7- falls within the category of a patient, who has been provided service free of charge. Such 'service' is not a 'service' as defined under the Consumer Protection Act, 1986. Therefore, the question of deficiency in service does not arise and consequently complainant cannot get any relief from the State Commission by way of compensation as prayed for.
15. USG (ultrasonography) is the most effective and most relied method for detecting the stages of pregnancy and also with regard to development of the fetus. Though definite finding regarding pregnancy cannot be ascertained, however, the USG report says pregnancy of 32 weeks old on 10.06.2012, is sufficient to prove that the complainant was already pregnant at the time of operation and thus the claim for failure of sterilization operation cannot be sustained.
16. Apart, the complainant has not filed any expert evidence of any doctor to substantiate her allegation that due to carelessness or negligence of the operating doctor her sterilization operation failed and she became pregnant and delivered a child.
17. Hon'ble Supreme Court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 in paragraph 19 has held that "Claim can only be sustained if it is proved that there was negligence on part of the operating surgeon". It is also further laid down by the Hon'ble Supreme Court that "Merely because a woman having undergone a sterilization operation and -8- became pregnant and thereafter delivered a child, the operating surgeon or his employee cannot be held liable for compensation on account of unwanted pregnancy or unwanted child." It is also laid down by the Hon'ble Supreme Court in the aforesaid judgment that "Surgeon can only be held liable in contract if the plaintiff alleges and proved by evidence that surgeon had assured 100 per cent success of surgery and it was only on basis thereof that plaintiff had agreed to undergo surgery."
18. In State of Haryana & Others Vs Raj Rani (2005) 7 SCC 22, the Hon'ble Supreme Court has held that "Failure due to natural causes , no method of sterilization being foolproof or guaranteeing 100 percent success would not provide any ground for a claim. So also vicarious liability of State would not arise."
19. Hon'ble High Court of M. P. in State of M.P.& Ors Vs Parvati Bai III (2006) CPJ 459 in paragraph 9 and 10 has held that "Methods of sterilization known to medical science not 100% safe and secure inspite of operation having performed successfully without any negligence on part of surgeon, sterilized woman can become pregnant due to natural causes."
20. In view of the aforesaid discussion and in facts and circumstances of the case, the opposite parties cannot be held liable to pay -9- compensation under the head of failure of sterilization operation. We find that the District Commission erred in allowing the complaint. Accordingly, the impugned order is set-aside.
21. In the result, this appeal is allowed with no order as to costs.
(A. K. Tiwari) (Dr. Srikant Pandey) Presiding Member Member