State Consumer Disputes Redressal Commission
Dr.S.M. Sheriffunissa, M.B.B.S., ... vs Smt. Chitra, W/O. R. Annamalai, ... on 18 December, 2013
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.A.K. ANNAMALAI, M.A.M.L.,M.Phil., Presiding Judicial Member
Thiru.S. SAMBANDAM, B.Sc, Member
F.A.No.95/2012
(Against the order in C.C.No. 61/2007 dated 11.01.2011 on the file of DCDRF,
Tirunelveli)
WEDNESDAY, 18th DAY OF DECEMBER 2013.
Dr.S.M. Sheriffunissa, M.B.B.S.,
Registered Medical Practitioner,
Registration No.35964,
C/o Raja Clinic,
No.37, Agasthiyar Kovil Street,
Puliyangudi-627855,
Sivagiri Taluk,
Tirunelveli District. Appellant/Opposite Party
Vs
Smt. Chitra,
W/o. R. Annamalai,
Vasudevanallur,
Sivagiri - Taluk.
Tirunelveli District. Respondent/Complainant
Counsel for Appellant/Opposite Party: M/s. Anand, Abdul & Vinodh, Advocates
Counsel for Respondent/Complainant: Mr. P. Senthilkumar, Advocate.
This appeal coming before us for final hearing on 25.11.2013 and on
hearing the arguments of the appellant's side and upon perusing the material
records this Commission made the following:
2
ORDER
THIRU. A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER.
1. The opposite party is the appellant
2. The complainant on 05.11.2001 undergone sterilization operation as she had already having 3 children and the operation was performed by the opposite party and during the last week of December 2004 when the complainant went for medical examination in the first week of January 2005, and on taking a scan on 09.02.2005 which revealed pregnancy of the complainant having 25 weeks of gestation and thereby the complainant alleging deficiency in service against the opposite party in performing the sterilization operation claiming to pay Rs.5,00,000/- with interest towards compensation for reckless performance of the puerperal sterilization operation after sending a legal notice on 30.05.2005 and for cost by filing this consumer complaint.
3. The opposite party denied the allegations of the complainant in her written version and contended that she had performed the duty to the best of her ability and due care and caution being a qualified surgeon with Pomeroy's technic which is standard technic for puerperal sterilization. The complainant was without any problem for a period of more than three long years family life with her husband after the sterilization, in the month of December 2004, the complainant reported some mis-periods the possibility of pregnancy was not thought and she was advised for further examination for which she did not turn 3 up. If there is any technical failure or wrong procedure in the surgery, there would have been pregnancy in the next few months following surgery. There is strong possibility of spontaneous and natural re-canalization of the surgically occluded fallopian tubes and such re-canalization is one of the recognized complications of the tubic sterilization procedure for which the opposite party is in no way responsible and cannot be considered as negligence and thereby the opposite party has not committed any mistake, negligence or deficiency in service and the complaint is liable to be dismissed.
4. On the basis of both sides materials and after an enquiry the District Forum came to the conclusion that there was deficiency in service on the part of the opposite party in conducting sterilization and thereby allowed the complaint by directing and opposite party to pay a sum of Rs.2,00,000/- as compensation for mental agony and Rs.5000/-as costs by the opposite party to the complainant.
5. Aggrieved by the impugned order, the opposite party has come forward with this appeal by contending that the District Forum erroneously allowed the complaint without considering the facts and circumstances of the case and simply because Exhibit B1 was produced belatedly through RW-2 which is not accepted and thereby the District Forum erroneously allowed the complaint which is to be set aside since there was no negligence or deficiency in performing the surgery on the complainant and no complaint for three years 4 after the surgery and possibility of natural re-canalization of fallopian tube for which the appellant cannot be held liable.
6. The respondent/complainant even though appeared through the advocate, failed to appear before this Commission for the purpose of arguments and thereby in the absence of respondent/complainant, after hearing the arguments of appellant's counsel and on the basis of materials placed before this Commission, the order being passed on merits.
7. We heard the arguments on the side of appellant and perused the materials placed before us in this regard including the order passed by the District Forum. It is the admitted case of both sides that the complainant had undergone a sterilization operation done by the appellant/opposite party on 05.11.2001 at the clinic with the consent of the complainant and her husband having three children already, the sterilization was undergone. It is also not in dispute that the complainant has not come forward with any complaint or other complications due to the performance of sterilization operation till the date of filing of the complaint viz., 05.06.2007. Even though the surgery was taken place during the year 2001 for more than five years, the complaint alleged that because of defective and negligent surgery unwanted female child was delivered on 02.06.2005 on which basis the compensation to the extent of Rs.5,00,000/- was also claimed. The learned counsel for the appellant contended that the complainant was said to have conceived during the year 2004 in the month of April and when she approached the opposite party she was advised to come for 5 next visit in order to proceed further for confirming the pregnancy for the alleged missing of menstrual cycle and the complainant failed to turn up for the consequent check up which is not denied by the complainant. The complainant alleged only because of negligence and deficiency in service in performing the sterilization operation, the future pregnancy was happened. Whether this contention could be acceptable one is the point to be considered. The learned counsel for the appellant contended that there are possibilities of re-canalization of fallopian tube even after surgery due to natural circumstances which are all accepted phenomena in the medical field and in this case when the complainant was living with the family without any complaint or complications after the sterilization operation performed by the opposite party for more than five years now alleging deficiency and negligence in surgery cannot be accepted simply because she became conceived after so many years which may be possible because of re-canalization of the fallopian tubes and thereby the complainant cannot blame the opposite party and the District Forum erroneously allowed this complaint without considering the other factors by stating since Exhibit B1 medical report was filed belatedly. Though Exhibit B1 was produced belatedly which will not be sufficient to say that because of belated production of Ex B1, the negligence could be considered as proved and also the learned counsel for the appellant relied upon a ruling reported in AIR 2005 SC 3279 in the case of State of Haryana and others - Vs - Raj Rani in which it is held as follows: 6
" Torts-medical negligence-Unwanted pregnancy-Birth of child in spite of sterilization operation can occur due to negligence of the doctor in performance of operation or due to certain natural causes, such as, spontaneous re-canalisation- Doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise.
Torts-medical negligence-Compensation-Liability-Child born in spite of sterilization operation-In the absence of proof of negligence, surgeon cannot be held liable to pay compensation- Question of state being held vicariously liable does not arise.
The learned counsel for the appellant further relied on a ruling reported in CDJ 2005 S.C. 616 dated 25.08.2005 wherein it is held as follows:
Law of Torts - Medical Negligence - Sterilization - Failure of Sterilization operation leading to unwanted pregnancy - There are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative text books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted once. The technique which may be foolproof, is removal of uterus itself but that is not considered advisable. It may be resorted to only when such 7 procedure is considered necessary to be performed for purposes other than merely family planning-The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed - Judgments and the decrees passed by the High Court and Courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiffs - respondents solely on the ground that in spite of the plaintiff-respondent No.2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer - State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has therefore, to be allowed and the judgment and the decree under appeal have to be set aside.
6. Further the learned counsel also relied upon the order passed by this Commission in F.A.No.80/2009 dated 10.10.2011 by this same bench in which one of the rulings cited above reported in 2005 (4) CTC 627 State of Punjab Vs Shic Ram and others pointed out in which it is already discussed the above in the 8 ruling cited as CDJ 2005, SC 616 dated 25.082005 and thereby in this case also, the complainant failed to prove that only because of the negligence and deficiency in service in performing sterilization operation by the opposite party she became pregnant after more than 3 years from the date of surgery and in those circumstances the District Forum erroneously allowed the complaint only on the basis of belated production of medical report under Ex B1 by invoking adverse inference that itself would not sufficient to accept the complainant's case especially when Ex B1 is narrated the procedure adopted for surgery performed even though, the report is belated one the contents of the report, was not challenged by the complainant. In those circumstances, we are of the view that the District Forum erroneously allowed the complaint which is liable to be set aside in view of the foregoing discussions and the reasons stated as above and thereby the appeal is to be allowed.
7. In the result, the appeal is allowed by setting aside the order of the District Forum, Tirunelveli, passed in C.C.No.61/2007 and the complaint is dismissed. No order as to costs in the appeal.
The Registry is directed to return the mandatory Fixed Deposit with accrued interest duly discharged in favour of the appellant/opposite party.
S. SAMBANDAM, A.K. ANNAMALAI,
MEMBER. PRESIDING JUDUCIAL MEMBER.
INDEX: YES / NO
TCM/Mdu Bench/Orders- 2013/Dec