State Consumer Disputes Redressal Commission
Chief Medical Officer, Haridwar vs Smt. Kaushal on 23 May, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 149 / 2008
1. Chief Medical Officer, Haridwar
2. Dr. Manisha, at present posted at Harmilap Government Hospital
Haridwar
......Appellants / Opposite Parties
Versus
Smt. Kaushal W/o Sh. Mahendra
R/o Village Jiyapota, P.S. Kankhal
District Haridwar
.....Respondent / Complainant
Sh. A.K. Dimri, Learned Counsel for the Appellants
None for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
Smt. Kusum Lata Sharma, Member
Dated: 23.05.2009
ORDER
(Per: Justice Irshad Hussain, President):
Appellants were the opposite parties in consumer complaint No. 230 / 2007 filed by Smt. Kaushal W/o Sh. Mahendra for award of compensation on the allegations that her sterilization operation on 22.02.2005 performed by appellant No. 2, in family planning camp at Centre Block Bahadarabad, District Haridwar, arranged by appellant No. 1, was not successful due to negligence of the appellant No. 2.
According to her, she again became pregnant despite already having 3 daughters and 2 sons and gave birth to 4th daughter on 02.03.2007, putting her to harassment and mental agony and uncalled for financial burden of bringing up and maintaining newly born daughter.
2. The defence taken was that there was no negligence in performing the sterilization operation; that the service was rendered to 2 the complainant free of charge; that the complainant was before hand made to understand that the sterilization operation may not be 100% successful and consent with such endorsement on the Prescribed Form was duly given by the complainant and that she was not entitled to any compensation on the allegations made by her in the complaint.
3. The District Forum, on an appreciation of the allegations of the parties, accepted the contention of the complainant, by observing that the operating medical officer has not adduced such evidence, as may have indicated that medical negligence in performing the sterilization operation, can not be attributed to her and on that premise, held the opposite parties liable to pay compensation to the complainant and went on to award compensation of Rs. 2,00,000/-, in addition to litigation expenses of Rs. 2,000/- to the complainant by the impugned order dated 05.06.2008.
4. None appeared on behalf of the complainant - respondent despite service. We have heard the learned counsel for the appellants and considered the facts, circumstances and legal aspects of the case. It need to be stated at the outset that there is merit in this appeal and the same is fit to be allowed.
5. The reasons are that in the first instance, it is of significance that the District Forum failed to take into consideration that the service rendered to the complainant was free of charge, in as much as the sterilization operation was performed in a family planning camp organized by the State Government and where the complainant voluntarily offered herself for sterilization operation by executing the consent letter, in which it had been specifically mentioned and it was also intimated to the complainant that the sterilization operation may also sometime fails and in that event, neither the Government, nor the 3 surgeon, who perform the operation, would be attributed any negligence and held liable for any compensation. This paper is on the record and militates against the allegations of the complainant that she had been assured that the sterilization operation would be 100% successful. The District Forum ignored the legal position settled by the Hon'ble Apex Court in the matter of Indian Medical Association Vs. V.P. Shantha and others; III (1995) CPJ 1 (SC) = 1995 (6) SCC
651. On that score, the order impugned can not legally be maintained.
6. Further, the District Forum fell in error in placing burden on the surgeon - appellant No. 2 to prove that she had not made any negligence in performing the sterilization operation on 22.02.2005 on the complainant. In fact, the onus lay upon the complainant to prove that the negligence in performing the sterilization operation is attributable to the appellant No. 2 and the complainant had utterly failed to discharge the onus in that regard. No evidence whatsoever was placed on record, as may have indicated that she again became pregnant due to the failure of the sterilization operation on account of negligence made by the operating surgeon in performing the sterilization operation. We may refer to the decision of the Hon'ble Apex Court in the case of State of Punjab Vs. Shiv Ram and others; IV (2005) CPJ 14 (SC) and wherein it had been held that child birth inspite of a sterilization operation, can occur due to negligence of the doctor in performance of the operation or due to certain natural causes, such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. The decision was later on also followed by the Hon'ble Apex Court in the matter of State of Haryana and others Vs. Raj Rani; IV (2005) CPJ 28 (SC), wherein it has been stressed that pregnancy can be for reasons de hors any negligence of surgeon and in the absence of any negligence, neither the surgeon, nor 4 the State can be held liable to pay any compensation to the lady, who became pregnant and gave birth to a child even after sterilization operation. These decisions fully apply to the facts of the case and in view of there being no evidence of medical negligence, the complainant was not entitled to be awarded any compensation. The complaint filed by her should have been dismissed by the District Forum.
7. For the reasons aforesaid, appeal is allowed. Order impugned dated 05.06.2008 of the District Forum is set aside and consumer complaint No. 230 / 2007 is dismissed. No order as to costs.
(SMT. KUSUM LATA SHARMA) (JUSTICE IRSHAD HUSSAIN) K