National Consumer Disputes Redressal
Pariwar Sewa Sanstha vs Late Ramesh Chand (Through Legal Heirs) on 26 August, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1251 OF 2017 (Against the Order dated 23/02/2017 in Appeal No. 93/2003 of the State Commission Delhi) 1. PARIWAR SEWA SANSTHA C-374, DEFENCE COLONY, NEW DELHI ...........Petitioner(s) Versus 1. LATE RAMESH CHAND (THROUGH LEGAL HEIRS) S/O. LT. SHRI FAQIR CHAND, THROUGH HIS LEGAL HEIRS, 1. MRS. PREMAWATI W/O. LT. SHRI RAMESH CHAND, R/O. 247, MASJID MOTH, NEW DELHI-110048 2. MS. PREET BHARAL, D/O. RAMESH CHAND, R/O. 247, MASJID MOTH, NEW DELHI-110048 ...........Respondent(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. BINOY KUMAR,MEMBER For the Petitioner : APPEARED AT THE TIME OF ARGUMENTS Mr. Mayank Kumar, Advocate Mr. Shambhu Chaturvedi, Advocate For the Respondent : APPEARED AT THE TIME OF ARGUMENTS Mr. Akhilesh, Advocate (Amicus Curiae) Dated : 26 Aug 2022 ORDER DR. S. M. KANTIKAR, PRESIDING MEMBER It is known that, deciding to terminate a pregnancy is an intensely personal and difficult decision for women and especially not to consider lightly. The emotional significance becomes even more apparent when a termination goes wrong due to MTP negligence.
The instant Revision Petition is filed against the order dated 23.02.2017 passed by the State Commission, Delhi which dismissed the appeal bearing no.93 of 2003 preferred by the petitioner against order dated 30.12.2002 passed by the District Forum, South-I, New Delhi in Complaint No.1519 of 1995 which allowed the Complaint preferred by Respondent and awarded compensation of Rs.75,000/-.
The issue involved that due to alleged negligence and the failure of Medical Termination of Pregnancy (MTP) procedure, the patient has to continue the unwanted pregnancy. Whether such woman deserves any compensation?
Brief facts to dispose this revision are that Premawati, wife of the complainant (hereinafter referred to as 'Patient') conceived 4th time. It was 1 ½ month pregnancy and on 28.12.1994 the doctor at Parivar Seva Sanstha (OP) performed Medical Termination of Pregnancy (MTP) and after 5 hours discharged her by telling it MTP was successfully performed. However, she noticed the pregnancy was continuing after 5 months. Therefore, she approached the OP. The Nurses verbally told to get admitted for the operation, which will be done free of cost. But, at that stage it was 6 ½ months pregnancy which was not possible to terminate. Therefore, there was no option for the patient but to continue the unwanted pregnancy and sustain burden of additional child in the family. Therefore, being aggrieved by the negligent care and procedure of the doctor at OP center, the Patient filed a consumer complaint before the District Forum, New Delhi for compensation of Rs.4,50,000/-.
The OP in its written version denied any medical negligence during MTP. As it was early pregnancy, therefore after MTP patient was called for follow-up after two weeks, but she came only after two months (16-18 weeks). At that time she was given option for MTP free of cost but she did not agree and stated that she would come again after discussing with her in-laws. As her in-laws were not in favour of MTP, therefore, she continued her pregnancy. It was stated that there was no 100% guarantee in MTP about evacuation of foetus.
After hearing the parties, the District Forum partly allowed the complaint and directed to pay compensation of Rs.75,000/- to the complainant. The relevant observation of District Forum are as below:
"After careful consideration of all the facts we are unable to appreciate that stand taken by OP that M.T.P. failure is a well-known and well documented medical fact and that at the early stages of pregnancy when foetus is very small, chances of doctor missing the sack are there. This statement of O.P. is not supported by any medical literature as the same has not been filed by O.P. In the absence of any medical literature, statements of O.P. xxxx cannot be believed and relied upon. On the other hand this common knowledge, that M.T.P. is xxxx Done when pregnancy is not more than 6 to 8 weeks. After this, it becomes risky for the lady and good doctors do not advise M.T.P. after this period. OPs attitude to the health and life of the lady is reflected in its willingness to perform M.T.P. when the lady was more than 6 months' pregnant. These are a few cases of failure of sterilization but we are not aware of any failure of M.T.P. Doctors of O.P. have certainly been negligent in not doing M.T.P. properly with the result that pregnancy continued and the complainant who is a poor person with three children was burdened with additional responsibility of feeding to the child. This is certainly a case of deficiency of service.
The complainant is a poor person with meagure sources of income and by negligent and careless act of O.P., he has been burdened with responsibility of 4th child who a girl. Considering all these facts, we feel that compensation of Rs.75000/- should be adequate and therefore we direct O.P. to pay Rs.75000/- to the complainant within one month of receipt of this order, failing which the interest @12% shall be payable from the date of this order till payment. Copy of this order be sent to both the parties and file be consigned."
Being aggrieved, the OP/Petitioner filed the First Appeal (F.A. No.93/2003) before the State Commission, which dismissed the Appeal with following observations:-
"10. It is admitted position that Smt. Premwati, wife of deceased respondent/complainant was admitted with appellant/OP on 28.12.94 for termination of pregnancy i.e. MTP. It is also admitted position that MTP was performed on 28.12.94 itself and thereafter she was discharged after five hours on that very day. The stand of the appellant/OP is that at the time of discharge, Smt. Premwati was told to come for follow up after two weeks and again after 4-6 weeks so as to rule out the possibility of continuation of pregnancy. However, she did not come for follow up. In rejoinder, the aforesaid stand is denied. Nothing has been placed on record by appellant/OP to substantiate the same. As per appellant/OP, MTP was done by Dr. B. Kalpagam. 6 No affidavit of the aforesaid doctor is there that Smt. Premwati or her husband was informed about follow up. The case sheet is also not produced by appellant/OP. In these circumstances, stand taken is not believable. There is an affidavit of Dr. Vishwanath Sneh filed by appellant/OP which is silent on aforesaid aspect.
11. As regards contention of appellant/OP that 100% success cannot be guaranteed in MTP, Ld. Counsel has placed reliance on the medical literature Family Planning Quality of Care: Training Manual for Medical Officers wherein failed abortion is one of "late complications" of MTP. Complete chapter on the subject is not filed. With the advancement of medical science, the failure rate ought to be very rare. The medical procedure may not be 100% foolproof. However, in the present case, the patient was not guided by the appellant/OP as has been noted above to rule out the continuation of pregnancy. The appellant/OP has failed to lead any evidence in this regard. The contention raised is rejected.
12. The other contention of appellant/OP is that patient was advised for free MTP when she visited the hospital on 2.3.95, as such appellant/OP cannot be held guilty of negligence. We may mention that the aforesaid contention has been examined by the Ld. District Forum and it has been observed as under:
"xxxxxxxxx that M.T.P. is done when pregnancy is not more than 6 to 8 weeks. After this, it becomes risky for the lady and good doctors do not advise M.T.P. after this period. OPs attitude to the health and life of the lady is reflected in its willingness to perform M.T.P. when the lady was more than 6 months' pregnant.
xxxxxxxxxx"
We find no reason to differ with the aforesaid observation of Ld. District Forum.
13. In view of the above discussion we agree with the finding of Ld. District Forum that doctors of appellant/OP were negligent in not doing MTP properly with the result pregnancy continued. Child has been born because of non-successful MTP. The respondent/complainant has also died during the pendency of the appeal. It has also come on record that he was a poor person. Considering the entire facts and circumstances, compensation of Rs.75,000/- has been rightly awarded. We find the same as reasonable. Ld. District Forum has considered the material on record and thereafter has passed the impugned order. There is no merits in the appeal. The appeal stands dismissed."
We have heard the learned Counsel for both the sides, perused the material on record inter alia the orders of both the Fora below and the medical records.
It is seen that the State Commission has passed a well-apprised reasoned Order. It has concurred with the District Commission. In the facts and situation of the matter, the Award made by the District Commission, as upheld by the State Commission, appears just and equitable. No reason to interference with the impugned Order of the State Commission is forthcoming.
On merit, after MTP procedure, the doctor shall send the curatted material / products for histopathological study to confirm it as products of conception. Even the OP could have advised urinary or blood level of Beta HCG to rule out presence of pregnancy. In the instant case the OP centre failed to produce such cogent evidence of their bonafide act.
10. It is glaring that the total amount involved Rs.75,000/- is comparatively not very high. The cause of action arose way back in 1994 i.e. about 27 years (almost 3 decades) , and the Order of the District Commission was to be satisfied without duress prior to the appeal being filed before the State Commission. The matter just lingered on, therefore, considering the peculiar facts we direct the petitioner to pay Rs.25,000/- towards the cost of litigation to the Complainant within 6 weeks from today.
11. The Revision Petition, being totally ill-conceived and completely bereft of merit, is dismissed.
12. The Registry is requested to send a copy each of this Order to the respective parties and to their learned counsel as well as to the District Forum immediately.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... BINOY KUMAR MEMBER