State Consumer Disputes Redressal Commission
Paramjit Kaur vs State Of Punjab Through Secretary on 17 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
Consumer Complaint No. 40 of 1993
Date of institution : 17.5.1993
Date of decision : 17.2.2011
1. Paramjit Kaur w/o Kulwinder Singh r/o Village and P.O. Rampur, District
Ludhiana.
2. Kulwinder Singh s/o Shri Sham Singh r/o V&PO Rampura, Distt.
Ludhiana.
....Complainants
Versus
1. State of Punjab through Secretary, Department of Health, Civil Secretariat,
Chandigarh.
2. Doctor Dharam Pal, S .M.O. Civil Hospital, Samrala, District Ludhiana.
3. The New India Assurance Company Ltd., Khanna. (Impleaded vide order
dated 25.11.2010).
......Respondents
Complaint under Section 17 of the Consumer
Protection Act, 1986.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the complainants : Shri Gurbinder Singh, Advocate.
For respondent No.1 : Ex-parte.
For respondent No.2 : Shri Sanjiv Sharma, Advocate.
For respondent No.3 : Shri Vinod Gupta, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This complaint was filed in this Commission on 17.5.1993. It was dismissed by this Commission vide order dated 17.8.1993. The complainants had filed an appeal in the Hon'ble National Commission. The appeal was accepted and the order dated 17.8.1993 passed by this Commission dismissing the complaint was set aside. The matter was remanded to this Commission with the Consumer Complaint No.40 of 1993. 2 direction to take on record evidence as to whether in the hospital where tubectomy was performed on complainant No.1 some charges were being levied on the patient and thereafter to decide the question afresh referred to above. Both the parties were called upon to produce evidence by way of affidavits/documents. The complainants had produced the affidavits and some documents but the State of Punjab had failed to do so and was proceeded against ex parte. This complaint was again dismissed by this Commission vide order dated 3.12.1996 by holding that the complainants were not the consumers qua the respondents. The complainants again filed an appeal in the Hon'ble National Commission which was accepted by the Hon'ble National Commission vide order dated 13.12.2005 and the complainants were held as consumers. The impugned judgment dated 3.12.2006 was set aside and this Commission was directed to decide the complaint afresh after giving both the parties an opportunity to lead evidence and to decide the appeal on merits.
2. After the matter reached back this Commission, it was brought to the notice of this Commission that Dr. Dharam Pal respondent No.2 had filed Special Leave to Appeal (Civil) No.12424 of 2006 in the Hon'ble Supreme Court against the remand order of the Hon'ble National Commission dated 13.12.2005. The S.L.P. filed by respondent No.2 was dismissed by the Hon'ble Supreme Court vide order dated 15.2.2010. As a result the remand order passed by the Hon'ble National Commission dated 13.12.2005 remains intact by which this Commission was directed to decide the complaint afresh after giving the parties an opportunity to lead evidence. Accordingly both the parties were given an opportunity to produce whatever evidence they wanted to produce in support of their respective versions. Arguments have been heard. This is how the matter has come before us for decision on merits.
3. The version of the complainants was that Paramjit Kaur complainant was the wife of Kulwinder Singh complainant. On the advice of respondent No.2, complainant No.1 had got herself operated for tubectomy for the purpose of family Consumer Complaint No.40 of 1993. 3 planning on 14.12.1989 in the Civil Hospital, Samrala. The tubectomy operation failed and a female child was born to complainant No.1 on 19.12.1990. The child was born due to the medical negligence of respondent No.2 in conducting the tubectomy operation. The newly born child had become a financial burden on the complainants and Rs.6,000/- per year was required for bringing up of the child including clothing etc. besides education expenses. Hence the complaint for recovery of Rs.2,00,000/- as compensation.
4. Respondent No.2 had filed the written reply. It was pleaded that the complainants were not the consumers as tubectomy operation was performed on complainant No.1 without charges. It was, however, admitted that respondent No.2 was posted as Senior Medical Officer in Civil Hospital, Samrala. It was denied if complainant No.1 had got herself operated on the persuasion of respondent No.2. She herself had consented for tubectomy operation under the family planning scheme.
5. It was further pleaded that as was universally accepted, the tubectomy operations were not 100% success. The possibility of failure of the tubectomy operations to some extent was there. Respondent No.2 had performed the operation on complainant No.1 with proper medical care, medical methodology and according to medical norms. The operation was simple in form. It is just by chance that the tubectomy operation of complainant No.1 had failed but medical negligence cannot be attributed to respondent No.2 for this purpose.
6. It was further pleaded that the span and growth of pregnancy were never complained by the complainants to the respondents nor any intimation was given to the health authorities of Government of Punjab in the span running into 9 months. It was denied if the child was an unwanted child and the failure of tubectomy operation was attributable to the respondents. Dismissal of the complaint was prayed.
7. The respondents had also filed an application for impleading the New India Assurance Company Ltd. as respondent No.3. This application was accepted by Consumer Complaint No.40 of 1993. 4 this Commission vide order dated 25.11.2010 and the New India Assurance Company Ltd. was impleaded as respondent No.3.
8. The respondent Insurance Company also filed the written reply and pleaded that respondent No.2 had not rendered any service to the complainants under the Consumer Protection Act, 1986. It was admitted that Dr. Dharam Pal respondent No.2 had taken the professional indemnity insurance policy which was valid only for an amount of Rs.1.5 lakhs in one case which was valid from 16.7.1992 to 15.7.1993. Therefore professional indemnity insurance policy was not subsisting as on 14.12.1989. Dismissal of the complaint was prayed.
9. The complainants produced the slip of tubectomy operation certificate as Annexure A-1, birth certificate of the child as Annexure A-2. Paramjit Kaur complainant no.1 also filed her affidavit dated 16.6.1996. The complainants also produced documents Annexure A-3 to Annexure A-6. Kulwinder Singh complainant No.2 also filed his affidavit dated 18.4.2006.
10. On the other hand, Dr. Dharam Pal respondent No.2 filed his affidavit dated 23.6.1993. He also filed the certificate of Dr. Gurdev Singh Mangat dated 10.2.1993 as Annexure R-1, certificate issued by Communist Party of India (Marxist) as Annexure R-2. Dr. Dharam Pal respondent No.2 also filed affidavits dated 2.7.1996, 8.7.1996, 24.9.1996 and 15.5.2006. He also proved the medical literature as Annexure R-1 (doubly marked), other documents Annexure R-2 (doubly marked) and Annexure R-3. He also proved documents as Annexure R-4 to Annexure R-6. He also filed the affidavit of Dr. Iqbal Kaur and the affidavit of Dr. Babli dated 15.5.2006.
11. The submission of the learned counsel for the complainants was that respondent No.2 had conducted the tubectomy operation on complainant No.1 and in spite of that a female child was born to complainant No.1. It was an unnecessary financial burden on the complainants due to the medical negligence committed by respondent No.2. Hence it was prayed that the complaint be accepted and the compensation be awarded against the respondents. It was also Consumer Complaint No.40 of 1993. 5 submitted that the State of Punjab has entered into a settlement with ICICI Lombard General Insurance Company Ltd. (in short "ICICI Lombard") and they have decided to award a sum of Rs.30,000/- in case the tubectomy operation fails. Hence it was prayed that in the alternative the complainants be awarded a sum of Rs.30,000/- as compensation as tubectomy operation performed by the respondents on complainant No.1 had failed and a child was born to her.
12. On the other hand, the submission of the learned counsel for respondent No.2 was that there was no medical negligence on the part of respondent No.2. Therefore neither respondent No.2 nor respondent No.1 was liable. It was further submitted that the scheme relied upon by the learned counsel for the complainants was not applicable on the date of operation which is evident from the fact that the complainants had not impleaded the ICICI Lombard as one of the respondents. Hence it was prayed that there was no merit in the present complaint and the same be dismissed.
13. The submission of the learned counsel for respondent No.3 was that respondent No.2 had not taken professional indemnity insurance policy for the date of operation i.e. 14.12.1989. Hence respondent No.3 was not liable.
14. Record has been perused. Submissions have been considered.
15. So far as the insurance policy is concerned, respondent No.3 has placed on the file a copy of the insurance policy. It was valid for the period from 16.7.1992 to 15.7.1993 but that insurance policy has no effect for fixing the liability of respondent No.3 in this case as the date of operation was 14.12.1989 i.e. much before the said insurance policy. Therefore no case has been proved against respondent No.3.
16. So far as the question whether the complainants are the consumers qua respondents No.1 and 2 is concerned, it has been held by the Hon'ble National Commission in the judgment dated 13.12.2005 that the complainants are the consumers qua respondents No.1 and 2. Therefore this question cannot be reopened as it has become conclusive between the parties. Consumer Complaint No.40 of 1993. 6
17. The medical negligence on the part of the respondents is alleged by the complainants only on the plea that complainant No.1 was operated by respondent No.2 for tubectomy operation. The operation had failed and a female child was born to complainant No.1 on 19.12.1990. Therefore the complainants got an unwanted child leading to financial burden on them. Hence compensation was prayed.
18. This question stands answered by the judgment of the Hon'ble Supreme Court reported as "State of Punjab v. Shiv Ram and others" AIR 2005 Supreme Court 3250. The facts in the reported judgment were identical to the facts of the present case which is clear from paragraph 1 of the reported judgment. It reads as under:-
"The plaintiffs-respondents respectively husband and wife, filed a suit against the State of Punjab, the appellant before us and a lady surgeon who was in the State Government's employment at the relevant time for recovery of damages to the tune of Rs.3,00,000/- on account of a female child having been born to them in spite of the wife-respondent No.2 having undergone a tubectomy operation performed by the lady surgeon."
19. After discussing some judgments and the books on the subject, Hon'ble Supreme Court was pleased to observe as under:-
"17. It is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable Consumer Complaint No.40 of 1993. 7 to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning."
20. Hon'ble Supreme Court in the aforesaid judgment in Shiv Ram's case (supra) was further pleased to hold as under:-
"23. 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, ordinarily a surgeon does not offer such guarantee." Consumer Complaint No.40 of 1993. 8
21. The ratio of law laid down by the Hon'ble Supreme Court in the judgment reported as "State of Haryana and others v. Smt. Santra" J.T. 2000(5) SC 34 was also discussed by the Hon'ble Supreme Court in para 25 of the aforesaid judgment as under:-
"25. Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiffs-respondents placed reliance on a 2-Judge Bench decision of this Court in State of Haryana & Ors. v. Smt. Santra, JT 2000 (5) SC 34, wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilization operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that 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. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found a decree for compensation in tort was held justified. The case thus proceeds on its own facts."
22. Hon'ble Supreme Court was pleased to hold that even if the tubectomy operation is performed with full care and caution and without any negligence even then there can be failure in tubectomy operations. In such cases it was the duty of Consumer Complaint No.40 of 1993. 9 the woman once she misses the menstrual cycle to visit the doctor and seek medical advice and if necessary seek termination of pregnancy which was legal and valid. It was so observed by the Hon'ble Supreme Court in para 26 of the Shiv Ram's case (supra).
23. It was further observed by the Hon'ble Supreme Court that the birth of a child in spite of tubectomy operation does not give a cause of action to the parents of the child. It was observed by the Hon'ble Supreme Court in Shiv Ram's case (supra) as under:-
"28. 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 for 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.
29. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiffs-respondents solely on the ground that in spite of the plaintiff-respondent No.2 having undergone a sterilization operation, she became pregnant. No finding has been arrived at that will hold the operating surgeon or its employer-the State, liable Consumer Complaint No.40 of 1993. 10 for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside."
24. In the present case, the complainants are claiming compensation only on the ground that an unwanted child had taken birth even after complainant No.1 had undergone tubectomy operation. It has been held by the Hon'ble Supreme Court that there could be cases where the tubectomy operations have failed but that alone is not sufficient to grant compensation to the woman who has given birth to the child.
25. In the present case, negligence on the part of respondent No.2 is alleged merely because a child was born to complainant no.1 and not independently. As per the law laid down by the Hon'ble Supreme Court in Shiv Ram's case (supra) no such compensation can be awarded merely on the ground that a child was born to such a woman.
26. So far as the grant of compensation to the complainants under the scheme relied upon by the learned counsel for the complainants the compensation in such cases can be awarded only by the ICICI Lombard and not by the Government of Punjab. Moreover under this Scheme the arrangement is between the Government of India and the ICICI Lombard. Neither the Government of India nor the ICICI Lombard has been impleaded as a party. Therefore compensation cannot be awarded to the complainants under this Scheme against the respondents. Moreover it was not in force at the time when complainant No.1 had got conducted tubectomy operation from respondent No.2.
27. Keeping in view the discussion held above, we do not find any merit in the present complaint and the same is dismissed.
Consumer Complaint No.40 of 1993. 11
28. The arguments in this case were heard on 9.2.2011 and the order was reserved. Now, the order be communicated to the parties.
29. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
February 17 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER