Delhi District Court
Smt. Veena vs The Govt. Nct Of Delhi on 30 April, 2010
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IN THE COURT OF SH. B.R.KEDIA,
ADDITIONAL DISTRICT JUDGE,
CENTRAL-10, TIS HAZARI COURTS, DELHI.
Suit No. 47/07
Unique Case ID No. 02401C0220872007
SMT. VEENA
W/O SH. MUKESH KUMAR
R/O 341/12-A, CHAMAR BUILDING BAGH,
KADE KHAN, KISHAN GANJ,
DELHI-110007 ...PLAINTIFF
Versus
1. THE GOVT. NCT OF DELHI
THROUGH ITS CHIEF/PRINCIPLE SECRETARY
MINISTRY OF HEALTH.
2. HEAD/CHAIRPERSON OF THE HEAD QUARTER
EMPLOYEE'S STATE INSURANCE COMPANY
PANCHDEEP BHAWAN, KOTLA ROAD,
NEW DELHI-110002
3. HEAD/CHAIRPERSON/CHIEF MEDICAL OFFICER
OF THE EMPLOYEE'S STATE INSURANCE
CORPORATION HOSPITAL,
BASAI DARAPUR, NEW DELHI.
4. ESI DISPENSARY,
THROGH ITS SENIOR DOCTOR
SHAHSTRI NAGAR, DELHI-110052 .....DEFENDANTS
DATE OF INSTITUTION :- 01.03.2007
DATE OF ARGUMENTS :- 26.04.2010
DATE OF DECISION :- 30.04.2010
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JUDGMENT
1. By virtue of this judgment, I shall dispose of the instant suit as filed by the plaintiff as against the defendant staking claim for recovery of Rs. 6 Lakhs towards compensation due to failure of her sterilization operation.
2. The precise case of the plaintiff as per her suit as under:
That the plaintiff approached the Hospital of defendant no. 3 on 09.06.2004 for undergoing sterilization operation and MTP/abortion and on being asked by the concerned Doctor to come up on next day, she reached the Hospital of defendant no. 3 on 10.06.2006 and on being assured by the Doctor of defendant no. 3 that after the sterilization operation, she will not further conceive, the plaintiff undergone the sterilization operation as performed by the Doctor of the defendant no. 3 ESIC Hospital, Basai Darapur, New Delhi on 10.06.2004.
3. It is further alleged by the plaintiff that no counselling was given by the concerned Doctor regarding precautionary measures to be taken by the plaintiff to avoid further conceivement after said sterilization operation. It is further alleged by the plaintiff on missing of the menstrual period, the plaintiff reported at branch of defendant 3 no. 3, ESIC dispensary, Shastri Nagar and plaintiff was assured by the Doctor that the same was due to the physical weakness and same would be normal after recovery of good health and was advised to take proper diet. That finally on 14.11.2005, the plaintiff alongwith her husband again reported the matter to defendant no. 4 and thereafter the plaintiff was referred to the Hospital of defendant no. 3 and after check-up, the plaintiff was informed by the concerned Doctor that the plaintiff was carrying pregnancy of 18 to 20 weeks and the plaintiff was shocked to know about the same. It is further agreed that plaintiff was advised by the Doctor of the ESIC Hospital to continue with pregnancy and the husband of the plaintiff was forced to sign such statement which he declined. Thereafter the plaintiff reported the matter for her further medical treatment at Vivekanand Polyclinic, Vivekanand Puri, Padam Nagar, Delhi and gave birth to a female baby on 09.12.20006.
4. It is further alleged that same had happened due to the negligence and non counselling by the Doctor of the defendants which resulted in immense hardships and sufferings to the plaintiff and that is why the plaintiff was ultimately constrained to file the present suit.
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5. After service of the summons on the suit, joint written statement on behalf of the defendants no. 2 to 4 was filed praying for dismissal of the suit. It has been further stated in the WS that Employees States Insurance Corporation has no duty to perform sterilization operation and same is performed freely on the instructions of the Government of NCT of Delhi. It is further stated that there was no sort of any negligence on the part of the concerned Doctor to conduct the sterilization operation. On the contrary, the plaintiff was herself negligent as she did not visit the Hospital on missing of her menstrual period though she ought to have done the same. It is further added that there is failure rate of 0.4% in such kind of sterilization operation and despite having notice of the same, the plaintiff as well as her husband have given the consent form before sterilization operation and therefore it is urged for dismissal of the suit. The plaintiff has filed the replication in response to the WS of defendant no. 2 to 4 reiterating the contents of plaint.
6. From the pleadings of the parties, vide order dated 13.08.2007, following issues were framed:-
1) Whether there was any negligence on the part of the doctors of ESI hospital in carrying out sterilization operation of plaintiff ? OPP
2) Whether the plaintiff is entitled for a decree of Rs. 6 5 Lakhs ? OPP
3) Whether the plaintiff is entitled to interest @ 18% p.a or at what other rate ? OPP
4) Relief.
7. During course of evidence, the plaintiff got examined herself as PW1 and her husband Mukesh Kumar as PW2 and thereafter PE was closed on 20.10.2008. Defendants no. 2 to 4 in support of their case got examined Dr. Renu Bindra from ESIC Hospital Basai Darapur as DW1 and DE was closed on 17.04.2010.
8. I have heard final arguments as addressed by Sh.
N.P.Vishwakarma, Adv. Ld. counsel for the plaintiff and Sh. Bhupesh Narula, Adv. Ld. counsel for the defendants no. 2 to 4 and perused the relevant record.
9. My Issuewise findings are as under:
Since Issue no. 1 and 2 are inter-connected, I will take up both these issues together.
Issue no.1 reads as under:-
1) Whether there was any negligence on the part of the doctors of ESI hospital in carrying out sterilization operation of plaintiff ? OPP Issue no. 2 reads as under:-
2) Whether the plaintiff is entitled for a decree of Rs. 6 Lakhs ? OPP 6 The onus of proof relating to both these issues were placed upon the plaintiff. It is submitted by Ld. counsel for the plaintiff that on being assured by the Doctor of the Hospital of defendant no. 3 that after undergoing sterilization operation, the plaintiff will not conceive, the plaintiff undergone said operation at the Hospital of defendant no.
3 on 10.06.2004 and was issued certificate of sterilization dated 10.06.2004 which is Ex. PW1/A in this respect.
10. It is further submitted by Ld. counsel for the plaintiff that said operation was neither conducted by competent Doctor nor proper counseling was given to the plaintiff as regards the precautionary measures to be taken to avoid further conceivement of the plaintiff. It is further added by Ld. counsel for the plaintiff that defendants have not examined the Doctor who had conducted the sterilization operation of the plaintiff. It is further added by Ld. counsel for the plaintiff that on missing of menstrual period, the plaintiff reported about the same to defendant no. 4 and was assured that the same might be due to the physical weakness and would be alright after sometime and no thorough check-up was conducted by defendant no.4. It is further submitted by Ld. counsel for the plaintiff that finally on 14.11.2005 when the plaintiff alongwith her husband 7 again reported the matter to the defendant no. 4, they were referred to Hospital of defendant no. 3 and after through check-up, the plaintiff was informed that she was having pregnancy of 18 to 20 weeks. The plaintiff was shocked to know about it and requested the Doctor of defendant no. 3 for termination of her pregnancy but was advised by the Doctor to continue her pregnancy and her husband was forced to sign statement in this respect but he declined.
11. It is further added by Ld. counsel for the plaintiff that the plaintiff ultimately reported the matter for her further medical treatment at Vivekanand PolyClinic and ultimately she delivered a female baby on 09.02.2006. It is further added by Ld. counsel for the plaintiff that said sterilization operation was not conducted by competent Doctor and even there was negligence on the part of the Doctor who conducted the said operation and even thereafter no proper counseling was tendered to the plaintiff by the concerned Doctor for taking precautionary measures as a result of which the plaintiff became pregnant and ultimately gave birth to a female child on 09.02.2006 which has resulted in immense hardships, sufferings and financial loss for which the plaintiff has filed the present suit for recovery of Rs. 6 Lakhs and hence this suit deserves to be decreed. 8
12. To the contrary, it is submitted by Ld. counsel for the defendants no. 2 to 4 that the sterilization operation was performed on 10.06.2004 by the competent Doctor successfully upon the plaintiff as per medical record Ex. DW1/1 to DW1/3. It is further added by Ld. counsel for the defendants that proper counselling was tendered by concerned Doctor to the plaintiff. It is further added by Ld. counsel for the defendants no. 2 to 4 that though the plaintiff was advised for follow-up in OPD after 7 days and then after menses or if irregular bleeding PV but the plaintiff have not bothered to do so and plaintiff has not approached the ESIC Hospital prior to 14.11.2005. Thus the plaintiff herself was negligent as she has not reported timely with the ESIC Hospital or dispensary. It is further added by Ld. counsel for the defendant no. 2 to 4 that the plaintiff and her husband were duly informed in writing that there are chances of failure of such sterilization operation on which plaintiff and her husband have acknowledged the same and given their consent as found reflected from the case sheet of the operation Ex. PW2/D1 and Ex. PW2/D2. It is further added by Ld. counsel for the defendants no. 2 to 4 that there was neither any negligence nor inefficiency of the Doctor in conducting the sterilization operation of the plaintiff. Ld. counsel for 9 the defendant no. 2 to 4 also added that sterilization operation of the plaintiff was successfully completed and mere conception and delivery after said sterilization operation by the plaintiff does not itself prove the negligence on the part of the Doctor specifically when the plaintiff has failed to establish any expert evidence in this respect to establish her stand. Ld. counsel for the defendant no. 2 to 4 thus urged for dismissal of the suit and referred and relied upon the judgments as reported as 118 (2005) DLT 515 and 2005 (7) SCC in support of his contention.
13. From the perusal of the record, it is clearly reflected that the plaintiff has undergone the sterilization operation at the Hospital of defendant no. 3 i.e, the Employee's States Insurance Corporation Hospital, Basai Darapur, New Delhi on 10.06.2004, said fact is found corroborated from the relevant record as available on the case file. As hospital OPD Ticket in this respect is proved as Ex. DW1/1, Discharge Slip is Ex. DW1/2 and Operation Note is Ex. DW1/3 and Laboratory Requisition Slip is Ex. DW1/4 and Certificate of Sterilization is Ex. PW1/A. Said sterilization operation is found to have been conducted by Dr. Rachna who was the Sr. Resident in the Department of Obstetrics and Gyne and was having Post Graduate 10 Degree and was competent to do so.
14. I do not find any force in the submissions of the Ld. counsel for the plaintiff to the effect that said sterilization operation was not conducted by competent person as the plaintiff has failed to lead any evidence in support of this stand. To the contrary, DW1 Dr. Renu Bindra has deposed in this respect as under:-
''It is wrong to suggest that because of the fact that operation was conducted free of cost so it was not done by a competent Doctor in this case. Vol. according to record, the operation was done by Dr. Rachna Mehra and she was a Senior Resident in the Department of Obstretics & Gyne and she was holding the Post graduate degree and she was fully competent.'' Furthermore, it is also revealed from the record that though the plaintiff has taken the stand that there was negligence on the part of the Doctor of ESIC Hospital in carrying out the said sterilization operation of the plaintiff, the plaintiff has failed to lead any evidence in support of her said stand. The plaintiff being examined as PW1 has clearly admitted in her cross-examination to the effect that she had no problem after her operation as she has deposed in this respect as under:
''On the date of operation, I did not feel any problem after the operation.'' Similarly, PW2 Sh. Mukesh Kumar who is the husband of the 11 plaintiff also found to have deposed in his cross-examination as under:
''It is correct that after the operation, we did not visit the hospital and dispensary as there was no even minor problem vol. my wife visited the dispensary after missing of the cycle.'' No evidence has been brought on record on behalf of the plaintiff to the effect that said Dr. Rachna was negligent in performing the sterilization operation upon the plaintiff on 10.06.2004. Mere conception and delivery after sterilization operation is no indication of negligence on the part of the concerned Doctor who conducted the sterilization operation. My said view is found nourished from the Judgment rendered by the Hon'ble Supreme Court of India, reported as (2005) 7 SCC of State of Punjab Vs. Shiv Ram & Ors'' as while dealing with similar situation it was observed at Para 25 as under:- ''We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, 12 ordinarily a surgeon does not offer such guarantee.'' Similar view was also held by Our Hon'ble Delhi High Court in the case reported as 118 (2005) DLT 515 ''Smt. Madhubala Vs. Govt. of NCT, Delhi & Ors.''
15. To the contrary, it is found from the record that the plaintiff herself was negligent as she did not rush to the hospital on missing the menses cycle, though she was supposed to do so as per the medical advise rendered to her being found reflected from the medical record.
16. From the perusal of the Discharge Slip Ex. DW1/2, it is found reflected that the plaintiff was advised to follow up in OPD after 7 days and then after menses or if irregular bleeding PV or if amenohorea persists but despite the said medical advice to the plaintiff as found reflected from the discharge slip Ex. DW1/2, the plaintiff has not bothered to report to the ESIC Hospital after 7 days of said sterilization operation or immediately after finding her menstrual cycle missing. Furthermore, PW 2 Sh. Mukesh Kumar, husband of the plaintiff is also found to have admitted regarding the delay in reporting about missing of her menstrual cycle as said PW2 in his cross-examination has deposed in this respect as under: 13
''I do not remember the month when my wife disclosed me about missing of cycle vol. she disclosed this fact after about one and a half year to quarter to two years of her operation.'' Similarly the plaintiff who has been examined as PW1 has also deposed in this respect as under:
''I went to the Basai Darapur Hospital after about one and half year of my operation and at that time I was having a pregnancy of about four and half months.''
17. It is also further revealed from the record that the plaintiff as well as her husband have filed the consent form in which it has been specifically mentioned and explained to the plaintiff and her husband that there are chances of failure of sterilization operation and after understanding the same, the same has been signed by the plaintiff as well as her husband before the performance of the said sterilization operation. Same is Ex. PW2/D1 which found bear the signatures as well as thumb impression of the plaintiff as well as her husband Mukesh Kumar and said fact is also found admitted by PW2 Mukesh Kumar in his cross-examination deposed in this respect as under:
''Document Ex. PW2/D1 bears my signature at point ''X1'' at two places and my left thumb impression at point X2 at two places and signatures of my wife appear at point Y and Y1 and her thumb impression at point Y2 to Y3. I can read Hindi.''
18. It is also revealed that document Ex. PW2/D2 which is the ''Admission and Summary Records'' regarding said sterilization 14 operation of the plaintiff, containing the authorization for medical and a surgical treatment as given by the husband of the plaintiff, bear his signature as well as thumb impression which is also admitted by PW2 Mukesh Kumar and same clearly found contained regarding the fact that he has been specifically explained about the chances of the failure about sterilization operation but despite that he has given the consent for the same.
19. In view of the aforesaid material as found available on the case record and taking the cue from the observation as made by Hon'ble Supreme Court of India in the case reported as 2005 (7) SCC (1) State of Punjab Vs. Shiv Ram and Ors. and another judgment as referred by Hon'ble Delhi High Court in the case reported as 118 (2005) DLT 515, Smt. Madhu Bala Vs. Govt. of NCT and Ors, I have no hesitation to safely conclude that the plaintiff have failed to prove the fact that there was negligence on the part of the Doctor of ESIC Hospital in carrying out of the sterilization operation of the plaintiff and further to the effect that the plaintiff is entitled for decree of Rs. 6 Lakhs and therefore both these issues no. 1 and 2 stand decided as against the plaintiff.
20. Issue No. 3 :- Issue no. 3 reads as under 15
3) Whether the plaintiff is entitled to interest @ 18% p.a or at what other rate ? OPP In view of my aforesaid findings relating to Issue no. 2 to the effect that plaintiff could not establish his entitlement for decree of Rs. 6 Lakhs, the, plaintiff is not entitled for any interest and therefore this Issue no. 3 also stands decided against the plaintiff.
21. The net result of the aforesaid discussion is that suit of the plaintiff deserve dismissal and is hereby dismissed. After doing the needful by the Ahlmad of this court, case file be consigned to Record Room.
Announced in the open court
today i.e, 30.04.2010
` (B.R.KEDIA)
ADDL.DISTRICT.JUDGE
CENTRAL-10, DELHI
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Suit No:- 47/07
30.04.2010
Present: None for the parties.
Vide separate judgment as pronounced in the court today, suit of the plaintiff stands dismissed. After doing the needful by the Ahlmad of this court, case file be consigned to Record Room.
(B.R.Kedia) ADJ/Central-10 Delhi/30.4.10