National Consumer Disputes Redressal
Union Of India vs Smt. Om Wati on 3 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.632 of 2007 (From the Order dated 20.08.2007 in Complaint Case No.71/1998 of the State Consumer Disputes Redressal Commission, Delhi) 1. Union of India, Through the Chairman, Railway Board, Rail Bhawan, New Delhi 2. The Chief Medical Officer, Northern Railway Hqrs. (Medical Department) Baroda House, K.G. Marg, New Delhi 3. Dr. Raj Kumar, Medical Director, Central Hospital, Northern Railway Panchkuin Road, New Delhi. 4. Dr.(Mrs.) Pushpa Mathur, Senior Divisional Medical Officer, Central Hospital, Northern Rlys. Old Delhi (main) Delhi 5. Dr.(Mrs.) Urmila Aggarwal, Sr. Divisional Medical Officer, Railway Hospital, Ghaziabad-UP .. Appellants Vs. Smt. Om Wati, W/o Sh. Dharamvir Singh, R/O H.No.1153-A, Old Vinay Nagar, Ghaziabad-UP ..Respondents BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellants : Mr. Jitendra Kumar Singh, Advocate For the Respondent : N E M O PRONOUNCED ON: 03.10.2012 O R D E R
ASHOK BHAN, J., PRESIDENT Appellants which were the Opposite Parties before the State Commission have filed this Appeal against the judgment and order dated 20.08.07 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, the State Commission) in Complaint Case No. C-71/1998 wherein the State Commission allowing the complaint filed by the Respondent has directed the Appellants to pay a sum of Rs.50,000/- as compensation to the Respondent.
FACTS:-
Briefly stated the facts of the case are that the Complainants husband was an employee of Northern Railway and as such she was beneficiary of Railway hospitals located in New Delhi and Ghaziabad. On 19.05.95 she had undergone a sterilization (tubectomy) operation and was operated by Respondent No.4, Dr.(Mrs) Pushpa Mathur (Opposite Party No.4 before the State Commission). In spite of the said operation, she became pregnant in September, 1996 and a caesarean child was born on 10.06.97. Alleging medical negligence on the part of the doctors and the hospital, she filed the complaint before the State Commission seeking compensation.
Appellants, on being served, entered appearance and filed their written statement taking the preliminary objection that the complainant was not a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986 (for short, the Act) as no consideration was paid by her for availing their services. On merits, it was pleaded that at the time of performing tubectomy operation, consent form was signed by the complainant wherein it was specifically mentioned that I know that there are some chances of failure of operation for which Government Hospital/operation surgeon will not be held responsible by me or my relatives or any other person, whatsoever and I am also aware that I am undergoing on operation which carries an element of risk.
That operation was performed with due diligence and proper care of the Respondent was taken before and after operation. That the fact that operation involves risk factor was specifically told to the Respondent in advance. That there was no deficiency in service on their part.
State Commission holding the doctors and hospital guilty of medical negligence, partly allowed the complaint and directed the Appellants to pay a sum of Rs.50,000/- as compensation to the Respondent.
State Commission held:-
Onus is heavily upon the doctor to show that every care was taken in performing the operation and the case was such that fell within the so called case where chances of failure were more. If we believe the doctor or the hospital that in such operation there is some percentage of failure then every failed case will come within the so called percentage of failure.
In our view, there is strong presumption of medical negligence of the operation if the operation fails. It is not for the complainant to prove the medical negligence but onus was heavily upon the doctor to prove from the medical record that all the care was taken and the fallopian tube was properly knotted.
Failure of such an operation can by no stretch of imagination be attributed as non-observance of instructions by the patient. This operation has to be perfect in all respect.
Operation fails when fallopian tubes are taken care of. If a woman does not observe certain instructions after operation, it may affect health but not in the failure of the operation. Such instructions are not for the purpose of avoiding failure of operation. These instructions are only for the health of the woman subsequent to such operation.
Appellants, being aggrieved, have filed the present appeal.
We have heard the ld. Counsel for the parties at length.
Point in issue as to whether merely because a woman having undergone a sterilization operation becomes pregnant and delivers a child, is entitled to compensation or not is concluded by a judgment of the Supreme Court in State of Punjab vs. Shiv Ram & Ors. (2005)7 SCC 1, wherein Supreme Court has held that merely because a woman having undergone a sterilization operation becomes pregnant, does not mean that there was any medical negligence or deficiency in performing surgery. That the tubectomy operation can fail and simply because the operation failed, does not entitle the woman to claim compensation. The Supreme Court, allowing the appeal of the opposite party held as under :-
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 in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on count of childbirth. The proof of negligence shall have to satisfy Bolams test, (1975) 2 AII ER 118, 121 D-F, set out in Jacob Mathew case, (2005) 6 SCC 1, at P. 19, para 19. Failure due to natural causes would not provide any ground for a 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 the 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. One the women misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2) read with Explanation II thereto, of the Medical Termination of Premonition of pregnancy. 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.
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 it was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. Ordinarily a surgeon does not offer such guarantee. Where a doctor contracted to carry out a particular operation on a patient and particular result was expected, the court would imply into the contract between the doctor and the patient a term that the operation would be carried out with reasonable care and skill, but would be slow to imply a term or unqualified collateral warranty that the expected result would actually be achieved, since it was probable that no responsible medical man would intend to give such a warranty.
(Reproduced from Head Note D) In the present case, Complainant has failed to prove any medical negligence on the part of the doctors or hospital in performing the sterilization surgery.
Respectfully following the view taken by the Supreme Court, we set aside the order passed by the State Commission and dismiss the complaint with no order as to costs.
Registry is directed to refund the sum of Rs.35,000/- deposited by the Appellants as statutory deposit along with accrued interest.
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(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER Yd