State Consumer Disputes Redressal Commission
Vibha Anil Andraskar vs State Of Maharashtra Through Civil ... on 13 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. FA/11/512 (Arisen out of Order Dated 31/10/2011 in Case No. cc/11/79 of District State Commission) 1. Vibha Anil Andraskar R/o Karamveer Ward Warora Chandrapur ...........Appellant(s) Versus 1. State of Maharashtra through Civil Surgen Chandrapur Govt Hospital Chandrapur Chandrapuir ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: For the Respondent: Dated : 13 Jul 2017 Final Order / Judgement A/11/512 (Delivered on 13/07/2017) Per Smt. Jayshree Yengal, Hon'ble Member
The original complainants Smt. Vibha Anil Andraskar and Shri Anil Shrawan Andraskar have preferred this appeal being aggrieved by dismissal of the consumer complaint bearing No. 79/2011, by order dated 31/10/2011, passed by the District Consumer Forum, Chandrapur.
Appellant No. 1 Smt. Vibha Anil Andraskar and appellant No. 2 Mr. Anil Shrawan Andraskar are referred as complainant Nos. 1 and 2 respectively. Respondent No. 1 State of Maharashtra through Civil surgeon, Tahasil and District Chandrapur is referred as opposite party ( for short OP) No. 1 and respondent No. 2 Dr. P.T. Panchabhai Sub District Government Hospital, Warora, Taluka Warora, District Chandrapur is referred as opposite party (for short OP) No. 2 for the sake of convenience. The complainants filed a consumer complaint alleging deficiency in service against the OPs as tubectomy operation performed on complainant No. 1 on 23/09/2008 by OP No. 2 failed and she conceived in spite of the tubectomy operation.
Facts of the case of complainants in brief are as under.
Complainant No.1 is the wife of complainant No. 2. They married on 21/5/2002. They had seven year old son and four year old daughter. As the complainants had two children, complainant No. 1 got the surgery of tubectomy done on 23/9/2008 under the Rashtriya Kutumb Kalyan Karyakram to avoid pregnancy. She also received a certificate bearing No. 245 from the Sub District Government Hospital about the same. The complainant did not have a regular menstruation cycle till 7/1/2009. Therefore she visited the hospital of OP No. 2 for medical checkup. On the pathology test of the urine, it was detected that she was pregnant. She therefore immediately met OP No. 2 Doctor who had performed tubectomy surgery on her. The OP No. 2 took the original urine report, the certificate bearing No. 245 from the complainant and he gave her a tablet and made her to dring the water from his own bottle and then procured signature on plain paper. It is the contention of the complainant that the OP No. 2 informed the complainant No. 1 to visit his hospital again on 9/1/2009. On 9/1/2009 when the complainants met OP No. 2 at his hospital, he told them that he would give Rs. 5,000/- and warned them not to make any complaints and assured that he would do further treatment. The original complainant No. 1/appellant No. 1 started bleeding from 10/01/2009. The complainants have alleged deficiency in service on the ground that undisputedly the family planning operation was performed on complainant on 23/9/2008 and on 7/1/2009, she was tested positive for pregnancy. This shows that the family planning operation was not done properly by taking due care. Therefore prima-facie the OP have rendered deficiency in service and negligence in providing medical service.
The complainants have sought for total compensation of Rs. 16,60,000/- which is inclusive of Rs. 50,000/- towards medicinal and travelling expense, Rs. 3,00,000/- towards mental and physical harassment, Rs. 3,00,000/- towards the disgrace and defamation and Rs. 10,00,000/- as damages as the complainant was deprived of the benefits of the Government notification scheme due to the birth of the third child and Rs. 10,000/- more towards cost of proceedings.
The OPs resisted the complaint by filing their written version and denied all the adverse allegations of the complainant.
The OP No. 1 has specifically submitted in his written version that the complainant No. 1 was given Addendum No. 4 which was attested the District Civil Surgeon. Clause 9 of the said aforesaid form mentions that in case of failure of the family planning surgery, the oriental insurance company under the family planning insurance scheme of the scheme of Government of India would pay Rs. 20,000/- as compensation which would be acceptable to the complainant. Clause No. 7 of the aforesaid Addendum says that there is possibility of conception even after the family planning and operation in such case none of the medical officer would be held liable. The hospital however by clause No. 8 undertakes that the operation for termination of pregnancy would be done free of cost. The complainant did not avail of this undertaking and therefore OP No. 1 denied to have rendered any deficiency in service and sought for dismissal of complaint.
The OP No. 2 has specifically submitted that he has performed more than 2,000 family planning surgeries successfully. According to the medical science, 0.4 percent tubectomy operations are not successful. Therefore consent is sought from the patient prior to the operation. Therefore OP No. 2 denied to have rendered any deficiency in service and sought for dismissal of complaint.
The Forum after hearing both the sides and considering evidence brought on record, dismissed the complaint as aforesaid.
The Forum has specifically held that the complainant has failed to prove medical negligence and deficiency in service against the OPs and therefore the complainant is not entitled for compensation as claimed.
Being aggrieved the complainants have preferred this appeal challenging the impugned order mainly on the ground that the very fact that the appellant No. 1 delivered child during the pendency of the complaint before the District Forum after the family planning operation is sufficient to prove that the respondents had rendered deficiency in service and was liable for medical negligence. Had the respondent No. 2 taken blue care while performing the family planning operation then the third child would not have been born. The respondent No. 1 in such circumstance is liable to pay the compensation towards upbringing and maintenance of the unwanted child.
We heard counsel for both the sides and perused the written notes of arguments filed by both the parties. We also perused copies of the complaint, written version and other documents filed on record. It is not disputed that the operation of tubectomy was performed on appellant No. 1, Smt Vibha Anil Andraskar by respondent No. 2 Dr. P.T. Panchabhai of Sub District Government Hospital, Warora, Chandrapur on 23/09/2008. It is also not disputed that the appellant No. 1 conceived and delivered a child during the pendency of the complaint. The issues that survives for our consideration is whether the respondents have rendered deficiency in service and adopted medical negligence while rendering medical services to the appellant No. 1 and whether the appellants are entitled to compensation for deficiency in service.
The medical papers that are filed by the appellants are the copy of the prescriptions and the medical bills. There is no opinion of the medical expert on record in respect of medical negligence to show that the respondent No. 2 did not perform the surgery properly or that he has adopted a course which is not accepted by medical practice.
We also perused the copy of the Addendum-4 which is the form for consent and affidavit to be filled in by the patient. Clause Nos. 7 and 8 of the aforesaid Addendum mentions that there is possibility of conception even after family planning operation and in such case, the medical officer or the institute would not be held liable and secondly in the event of patient missing the menstruation cycle then the medical officer/hospital would perform operation for termination of pregnancy free of cost.
The only inference that can be drawn from the aforesaid clause is that Government has floated scheme for family planning. The surgery to be performed is to be done with free consent of the patient. In case of any failure, the Government has volunteer to provide the medical service free of cost. [ In this case operation for termination of pregnancy (Abortion) ] Such service to be provided free of cost can be said to be supported to the family planning scheme to control population and such rare contingency to be taken care of in view of report of the medical science.
The learned advocate of appellants/complainants relied on the judgment passed by the Hon'ble National Commission in case of Prasantha. S. Dhananka Vs. Nizam's Institute of Medical Schience and Ors. , reported in I(1999) CPJ 43 (NC), and the judgment passed in case of State of Haryana and Ors. Vs. Smt. Santra, by the Hon'ble Apex Court, reported in I (2000) CPJ 53 (SC).
The learned advocate of respondent No. 2, Dr. P.T. Panchabhai on the other hand relied on the judgments in the case of Kamla Kesharwari Vs. Suptd. Shyamshah Medical College, reported in III (2009) CPJ 17 (NC) and in the case of Union of India and Ors. Vs. Om Wati, reported in IV(2012) CPJ (NC) and in the case of Jaswinder Singh Vs. Dr. Gurbir Kaur, reported in 2014(1) CLT 443.
We perused the authorities relied upon by the appellants advocate. The ratio laid down in the case of Prasantha. S. Dhananka Vs. Nizam's Institute of Medical Schience and Ors. , reported in I(1999) CPJ 43 (NC), is of no support to the appellant as it deals with in Inadequacy of Dignostic Procedures in preoperative stage while in the present case, inadequacy in diagnostic is not alleged in the complaint. Therefore the facts being different, the ratio cannot be applied.
The second authority relied upon of the case of State of Haryana (Supra) by the appellant deals with the entitlement to claim full damages from State Government to bring up child in case of birth of a child in spite of sterilization. It deals with Medical Negligence and statutory liability to maintain children and no wrong in claiming damages on account of Tort of Medical Negligence in not carrying out sterilization operation with due care. The complainant has not alleged that the respondent had not performed the operation with due care. Therefore the facts being different. The ratio laid down in the aforesaid case cannot applied to the present case.
The learned respondent No. 2 has relied upon the judgment passed by the Hon'ble National Commission in case of Kamla Kesharwani Vs. Superintendent Shyamshah Medical College and Gandhi Memorial Hospital and Ors. The Hon'ble National Commission has held that after tubectomy operation it is not guaranteed that the child birth will not take place. Failure of tubectomy operation is explained in medical texts. The Hon'ble National Commission has also referred to the observations made by the Hon'ble Apex Court in the case of State of Panjab Vs. Shivram and Ors. Reported in II (1995) CPJ I (Supreme Court) which reads as under:
" The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground of 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 of such a child cannot be claimed."
" The methods of sterlizaition so far known to medical science which are most popular and prevalent are not 100 percent safe and secure. In spite of operation having been successfully performed and without any negligence on the part of the surgeon, the sterilize woman can become pregnant due to natural causes."
The ratio laid down in the aforesaid judgment relied on by advocate of respondent squarely covers, the present case and therefore the respondent No. 2 is rightly exonerated by the impugned order. The Hon'ble National Commission has consistently held that medical negligence or deficiency in service cannot be attributed in case of failure in tubectomy operation and therefore it does not entitle the woman to claim compensation. In view of the ratio laid down in the above judgments of the Hon'ble Apex Court and the Hon'ble National Commission, we find no infirmity or illegality in the impugned order and the appeal deserves to be dismissed being devoid of merits. In the result we pass the following order.
ORDER The appeal is dismissed.
The impugned order dated 31/10/2011, passed by the District Consumer Forum, Chandrapur in consumer complaint No. 79/2011 is confirmed.
No order as to cost in appeal.
Copy of order be furnished to both the parties, free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER