State Consumer Disputes Redressal Commission
Chief Medical Officer vs Smt. Balesh on 12 October, 2022
Appeal No. 29 of Chief Medical Officer 12.10.2022
2015 Vs.
Smt. Balesh
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 10.04.2015
Date of final hearing: 02.09.2022
Date of Pronouncement: 12.10.2022
First Appeal No. 29 / 2015
Chief Medical Officer
Haridwar, District Haridwar
(Through: Sh. Ashok Dimri, A.D.G.C. (Civil), Advocate)
.....Appellant
VERSUS
Smt. Balesh W/o Sh. Shyam Kumar
R/o Village Salempur, Post Bhadrabad
Tehsil & District Haridwar
.....None for Respondent
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
The present appeal has been directed against the judgment and order dated 11.02.2015 passed by the District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 243 of 2013 styled as Smt. Balesh vs. Chief Medical Officer, Haridwar, wherein and whereby the complaint case was allowed.
2. The facts giving rise to the appeal in hand, in brief, are as such that on 28.12.2011, the complainant had under gone family planning 1 Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh (Sterilization) operation in District Mahila Hospital, Haridwar and adhered all precautions and instructions told to her; the complainant had undergone the said operation with an intent to keep her family short and to provide better education to her five children, but after expiry of one year, the complainant missed her menstrual cycle; as per the ultrasound report dated 31.05.2013, the complainant has found herself pregnant of 9 weeks and 6 days; this fact was also affirmed by J.N. Sinha Memorial Government Hospital. This fact was also apprised to the doctor concerned informing medical negligence on the part of the doctor concerned, on account of which the complainant became pregnant. Hence, to get the requisite relief, the present complaint has been filed by the complainant.
3. The opposite party has averred in its written statement that before the vasectomy operation, the application form of the beneficiary was taken, which has to be filled and given, in which it is clearly written that "I also know that this operation sometimes fails, due to which it is clear that I will not be held responsible by my relatives or by any other person whosoever may be in the Government hospital / surgeon performing the operation." Therefore, it is further alleged on account of such consent letter, the complainant has no right to say that the sterilization operation of the respondent has failed due to the negligence of the appellant's doctor." It is also pleaded that the vasectomy operation of the complainant was done by telescopic method, in which there is minimum surgery, but in relation to the above method 0.3% unsuccessful cases are also mentioned in the book of Jeffcatt Austratic Gynecology, therefore, the complainant is not entitled to any relief.
4. The District Commission / Forum after taking into consideration the material available on record passed the order dated 11.02.2015, whereby it held as under:-
2Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh "f"kdk;rdrkZ dh ;g f"kdk;r mijksDrkuqlkj Lohdkj dh tkrh gSA foi{kh dks funsZf"kr fd;k tkrk gS fd vkns"k dh frfFk ls ,d ekg ds Hkhrj og f"kdk;rdrkZ dks 25]000@& :0 ¼iPphl gtkj½ dh /kujkf"k dk Hkqxrku fd;k tkuk lqfuf"pr djsaA"
5. Aggrieved by the aforesaid judgment and order of the District Commission, the appellant (opposite party in consumer complaint) has preferred the present appeal stating that the learned sub-ordinate Commission has committed a great mistake in passing the impugned order overlooking the fact that the complainant does not come under the category of 'consumer'. It is further pleaded that the family planning is a Government scheme, which comes under the policy and the policy does not come under the category of 'consumer'. There is also no dispute on this point that after operation, few cases are unsuccessful. The respondent - complainant was informed by the appellant at the time of operation that these sterilization operations sometimes fail and as per the consent letter by the respondent - complainant, there is no right to file the complaint before the District Commission and the respondent - complainant has no right to say that the sterilization operation has failed due to the negligence of the appellant's doctor. Before the operation, an operation form is taken from the beneficiary who undergoes the vasectomy operation and respondent - complainant has given her clear consent that she knew that the operations are sometimes unsuccessful for which doctor will not be held responsible by her relative or any other person for such medical negligence. In the appeal, it is also averred that the learned sub-ordinate Commission has also overlooked the fact that the vasectomy operation of the complainant was done by telescopic method, in which there is minimum surgery, but in relation to the above method 0.3% unsuccessful cases are also mentioned 3 Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh in the book of Jeffcatt Austratic Gynecology, therefore, the impugned judgment is not tenable.
6. None has appeared on behalf of the respondent before the Commission to place the arguments and the appeal is being heard ex-parte vide order dated 27.01.2022.
7. We have heard learned counsel for the appellant and perused the impugned judgment.
8. The question of consideration before us is whether there was any medical negligence on the part of the doctor / appellant or not.
9. It is an admitted fact that the complainant had undergone family planning (sterilization) operation. It is not disputed that the complainant has apprised the fact of her pregnancy to the doctor concerned that she had conceived, even after sterilization. It is also proved on record that the respondent - complainant was having five children in her family and her husband is a labour in Shaktibhog Company, Industrial Area, SIDCUL, Roshnabad, Haridwar with monthly salary Rs. 6,600/- per month.
10. It was well settled that methods of sterilization / vasectomy operations are not 100% safe and secure. It is true that the vasectomy of the complainant was conducted by telescopic method in which there is minimum surgery and in such surgery by adopting the vasectomy method, 0.3% unsuccessful cases are also mentioned in the book of Jeffcatt Austratic Gynecology.
11. The Hon'ble Apex Court in the case of State of Punjab vs. Shiv Ram and others; IV (2005) CPJ 14 (SC), has held that unless it is proved 4 Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh by the cogent evidence on record that the operating doctor was negligent in the performance of the job assigned to him / her, no case of medical negligence can be sustained merely on the ground of failure of sterilization operation. It was further held that merely because woman having undergone sterilization operation became pregnant and delivered child, operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or child. It is worth to mention here that no medical expert evidence has been produced on record to show that the sterilization operation of the complainant was not carried out as per the prescribed method. The District Forum has nowhere in its impugned judgment recorded any finding on the point of medical negligence on the part of the operating doctor and in the absence of such a finding, the District Forum was not at all justified in allowing the consumer complaint.
12. The Hon'ble National Commission in the case of Kamla Kesharwani vs. Superintendent, Shyamshah Medical College and Gandhi Memorial Hospital and others; III (2009) CPJ 17 (NC), has held that there is no guarantee that after tubectomy operation, the child birth will not take place. It was also held that the failure of tubectomy operation has been explained in medical texts. It was also held that, "the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. Inspite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2) Explanation II provides that if the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971".
5
Appeal No. 29 of Chief Medical Officer 12.10.2022
2015 Vs.
Smt. Balesh
13. This Commission in its decision dated 17.08.2010 rendered in First Appeal No. 291 of 2007; Dr. S.K. Gupta and others vs. Sh. Rajbir Singh, under the similar circumstances, has held that the case of medical negligence against the operating surgeon is not made out and the complainant was not held entitled to any relief and the order passed by the District Forum, allowing the consumer complaint, was set aside.
14. We may also advantageously refer to a decision dated 03.12.2008 of the Hon'ble National Commission given in the case of The Chief Executive Officer and others vs. Sagunabai Navalsing Chavan; 2011 (1) CCC 286 (NS). The facts of the reported case were that the complainant underwent tubectomy operation and even after the tubectomy operation, she became pregnant and delivered a female child. The District Forum awarded compensation of Rs. 500/- per month towards the expenses of the child upto the age of 18 years and directed the opposite party Nos. 1 to 4 to pay jointly and severally sum of Rs. 1,15,000/- as compensation along with cost of Rs. 5,000/- to the complainant. The Hon'ble National Commission held that the tubectomy operation was performed free of cost and the complainant got incentive from the Government for undergoing operation. It was also held that once the complainant has conceived, she could have approached same hospital for undergoing MTP, which she has not done. As per the Medical Literature, there are chances of failure of sterilization and recanalisation could take place due to natural causes. The order of the Foras below was set aside and the complaint was dismissed. In the instant case also, the sterilization / tubectomy operation of the complainant was done at the Government hospital free of cost.
15. Learned counsel for the complainant - Smt. Shashi cited a decision of the Hon'ble Apex Court given in the case of State of Haryana and others vs. Smt. Santra; I (2000) CPJ 53 (SC). In the said case, the 6 Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh documents placed on the file as well as testimony of PWs proved that the medical officer who conducted the operation has threw the care and caution to the winds and focused attention to perform as many as operations as possible to build record and earn publicity. It is in such settling that a poor lady obsessed to plan her family, was negligently operated upon and treated and left in the larch to suffer agony and burden, which was made to believe was avoidable. In the said case, Smt. Santra already had seven children. In such circumstances, compensation was awarded. In the instant case, there is no evidence to prove that the operating doctor had committed medical negligence in the sterilization operation of the complainant. It may not be out of place to mention here that the complainant had undergone sterilization operation on 18.10.2015 and she gave birth to a female baby on 22.01.2009, i.e., after a period of more than three years' from the date of operation. Even otherwise, the decision cited on behalf of the complainant does not hold good in view of the latest law on the subject, as discussed above. This apart, the decision given in the case of State of Haryana and others (supra) is two Judges' Bench decision, whereas the decision given in the case of State of Punjab (supra) is a three Judges' Bench decision headed by the then Hon'ble Chief Justice of India and in the case of State of Punjab (supra), the Hon'ble Apex Court has discussed its earlier decision given in the case of State of Haryana and others (supra) and it was held that in the case of State of Haryana and others (supra), the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. It was in such circumstances that a case of medical negligence was found and a decree for compensation in tort was held justified. Thus, the said case proceeded on its own facts. The facts of each and every case are different and every case 7 Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh has to be decided on its own merit. It is also not denied that the prior to the operation, a consent letter / form was signed by the complainant.
16. In our view when the consent letter was written, wherein it was clearly mentioned that sometime these vasectomy operations exceptionally fails and in that situation the person getting operated will not file any suit. As per the consent letter when the method of sterilization operation is not 100% safe and secure, there are 0.3% unsuccessful cases and there is also no proof that there had been any negligence on the part of the doctor, who has conducted such operation, then in such circumstances and in the light of the above mentioned case laws, we are of the considered view that the learned District Commission has not properly considered the law on the point and has erred in allowing the consumer complaint vide impugned order, which suffers from vice of infirmity and cannot legally be maintainable and is liable to be set aside. Consequently, the appeal deserves to be allowed.
17. Accordingly, the appeal is allowed. Impugned judgment and order dated 11.02.2015 passed by the District Commission, Haridwar is set aside and the consumer complaint filed by the complainant is hereby dismissed. No order as to costs.
18. Statutory amount deposited by the appellant be returned to the appellant.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned 8 Appeal No. 29 of Chief Medical Officer 12.10.2022 2015 Vs. Smt. Balesh District Commission alongwith copy of this judgment for record and necessary information.
20. File be consigned to record room along with copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 12.10.2022 9