State Consumer Disputes Redressal Commission
The Medical Officer, In Charge Of ... vs Sou.Shobha Shankar Patil on 1 November, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, (AURANGABAD CAMP) FIRST APPEAL NO.1118 OF 2003 Date of filing : 29/07/2003 IN CONSUMER COMPLAINT NO.193/2002 Date of order : 01/11/2008 DISTRICT CONSUMER FORUM : JALGAON The Medical Officer In charge of Primary Health Centre R/o.Ringangaon, Taluka Erandol District Jalgaon Appellant/org.O.P. V/s. Sou.Shobha Shankar Patil Through Shankar M.Patil R/o.Ringangaon, Taluka Erandol District Jalgaon ..Respondent/org.complainant Corum: Justice Mr.B.B.Vagyani, Honble President Shri P.N.Kashalkar, Honble Judicial Member Smt.Uma Bora, Honble Member Present: Mr.N.S.Choudhari-Advocate for the appellant Mr.A.I.Deshmukh-Advocate for the respondent : ORDER:
Per Justice Mr.B.B.Vagyani, Honble President Heard Mr.N.S.Choudhari-Advocate for the appellant. Mr.A.I.Deshmukh-Advocate for the respondent.
Sou.Shobha Shankar Patil, R/o.Ringangaon, Taluka Erandol, District Jalgaon opted for Family planning operation after 4th issue. She is having two sons and two daughters. She is not well of. Appellant herein performed Family planning operation on 22/7/1992. However, Family planning operation was unsuccessful. Sou.Shobha Patil became pregnant and delivered male child on 24/3/2002. She is unable to spend on 5th child due to her poverty. She therefore filed consumer complaint against operating surgeon for grant of compensation of Rs.2 lakhs.
Said complaint was resisted by the operating surgeon. District Consumer Forum turned down the defence raised by the operating surgeon and partly allowed the complaint. District Consumer Forum directed the operating surgeon to pay compensation of Rs.1 lakh to the complainant besides Rs.5000/- for physical and mental harassment and Rs.500/- towards cost. Correctness of this order is challenged by the operating surgeon in this appeal.
It is our experience that District Consumer Forums without digesting the facts of case of State of Haryana and others V/s. Smt.Santra Maharashtra Law Reporter 2001 Volume 1, Page 1, jumped to a conclusion that there is negligence on the part of operating surgeon simply because Family planning operation is unsuccessful. This approach is wrong.
We would like to refer to the decision of Supreme Court in the case of State of Punjab V/s. Shiv Ram and others 2005(5) ALL MR (S.C.) 1090. Supreme Court has held that merely because woman having undergone sterilization operation became pregnant and delivered a child, an operating surgeon cannot be held liable for compensation on account of unwanted pregnancy or child. Claim in tort is sustainable only if there was negligence on the part of surgeon in performing surgery or surgeon assured 100% exclusion of pregnancy after surgery.
Supreme Court further observed that the proof of negligence shall have to satisfy Bolams test. Cause of action for claiming compensation in failed sterilization operation arises on account of negligence of operating surgeon and not on account of child birth. Supreme Court also observed that the methods of sterilization so far known to the medical science which are most popular and prevalent are not 100% safe and secure. In spite of operation having been successfully performed and without any negligence on the part of operating surgeon, the sterilized woman can become pregnant due to natural causes. 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 such a child cannot be claimed. It is material to note that Supreme Court after having made reference to the decision of Smt.Santra has observed that the case of Smt.Santra is clearly distinguishable and cannot be said to be laying down any law of universal application.
Supreme Court in the case of State of Haryana and others v/s. Raj Rani IV(2005) CPJ 28 (S.C.) has held that doctor can be held liable only in cases where failure of operation attributable to his negligence and not otherwise. Medical negligence recognized percentage of failure of sterilization operation due to natural causes depending on techniques chosen for performing surgery. Pregnancy can be for reasons for de hors any negligence of surgeon. Fallopian tubes cut and sealed may reunite and woman may conceive though surgery performed. Surgeon cannot be held liable to pay compensation. State cannot be held vicariously liable.
After having scanned the material placed on record and after having considered the facts and circumstances of the case, coupled with well settled legal position, we are of the clear opinion that the impugned order under challenge suffers from illegality. In the result, we pass following order:-
ORDER
1.
Appeal is allowed.
2. Impugned order dated 17/06/2003 passed in consumer complaint no.193/2002 is hereby quashed and set aside.
3. Amount if any deposited by the appellant for obtaining stay be returned to the appellant.
4. Copies of the order be furnished to the parties.
(Uma Bora) (P.N.Kashalkar) (B.B.Vagyani) Member Judicial Member President Ms.