State Consumer Disputes Redressal Commission
Guru Teg Bahadur Hospital vs Mrs. Babita on 11 July, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 11.07.2013 First Appeal No.192/2009 (Arising out of the order dated 18.10.2008 passed by the District Consumer Dispute Redressal Forum (North-East), Bunkar Vihar Complex, Nand Nagri, Delhi-110093 in Complaint Case No.142/2005) 1. Guru Teg Bahadur Hospital Through Medical Superintendent Dilshad Garden, Delhi-95. 2. Dr. Banchhita Dilshad Garden, Delhi-95 Appellants VERSUS Mrs. Babita W/o Shri Subhash R/o C-1/741, Gali NO.26 Harsh Vihar, Delhi-110093 ..Respondent CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.C.Jain, Member Judgment
1) The appellants have preferred this appeal against judgment dt. 18.10.2008 of the District Forum (North East) Bunkar Vihar Complex, Nand Nagri, Delhi in Complaint Case No. 142/2005 in which the Appellant-1/OP-1 was directed to pay an amount of Rs. 30,000/- towards failure of negligence of tubectomy operation alongwith Rs. 60,000/- for bringing up the child who took birth inspite of the tubectomy operation and further an amount of Rs. 3,000/- towards physical and mental harassment and Rs. 1,000/- as cost of litigation.
2) The brief facts of the case are:-
i.
That the respondent/complainant had under gone a tubectomy operation at Guru Teg Bahadur Hospital i.e. the Appellant-1/OP-1, but the operation failed and respondent delivered a female child on 18.12.2004. The district forum after hearing the matter and perusal of the records and evidence filed by way of affidavit came to the conclusion that the contention of the appellant-1/OP-1 that the respondent/complainant had duly signed the consent letter which clearly explained that there are chances of failure of the operation also and the complainant also had to take all due care in case of any missed menstrual cycle and the complainant/respondent had to report the same within two weeks and in case of failure to comply with the instructions mentioned in the consent letter they are not responsible and liable, but the district forum hold that this contention of OP/Appellant does not hold good and that the government hospital should be more conscious in carrying out sterilization operation as the general public has a great faith in them and reporting or not reporting of pregnancy cannot be stretched that any abortion can be carried out which again depends on medical advice and internal faith of person regarding carrying out any abortion. No citizen can be pressurized for undergoing abortion. Conceiving and delivering a child after sterilization operation is clearly deficiency in service on the part of OP.
ii.
Notice by registered post AD was send to the respondent-/complainant who appeared and filed their reply and contested the case.
iii.
The Appellants/OPs contested their case against order of the District Forum mainly on the following grounds:-
a) That the appellant is a government hospital and the respondent is not amenable to the jurisdiction to the consumer forum and the District Forum has erred in observing that the Government hospital should be more conscious as compared to the private hospital in carrying out sterilization operation.
b) And the other ground taken by the appellant is that the District Forum has not appreciated the undertaking given by the respondent/complainant in the consent letter in its letter & spirit which was signed before the operation.
c) In other ground taken by the appellants, the appellants had stated that no basis had been provided by the District Forum on which the forum has arrived at the conclusion of the quondam of damages and the same district forum in another case of similar nature had directed the complainant to move before the concerned insurance company for compensation purposes with which the government of NCT of Delhi had entered into an agreement for granting and passing the claim of ex-gratia compensation under ex-gratia compensation scheme formed in view of the judgment of Honble Supreme Court of India pronounced in the case titled as Ramakant Rai & Ors. V/s Government of India & Ors.
Therefore the district forum was also not right in holding two different opinions in two similar constituted cases, which shows there arbitrariness.
3) The respondent/complainant in response to the grounds of appeal of the appellant stated that the Guru Teg Bahadur Hospital is a government hospital but all the services provided by the hospital are not free of charge and for certain type of facilities hospital charge different amounts for different facilities from the patients and as such he is very well covered under the definition of the consumer provided under section 2(1)(d) of the Consumer Protection Act and the to the 2nd ground of Appellant had stated that she was never told at the time of getting the consent letter signed, that there can be chances of failure of tubectomy operation and the hospital got the same signed from her on the dotted lines and the proforma of consent letter was in English language, and she is an illiterate poor lady which cannot understand the language and conditions mentioned in consent letter.
Respondent/Complainant further stated that as far as the question of awarding the compensation towards different heads is concerned, it is the prerogative of the forum to award the same and stressed that the compensation awarded by the forum is too less for upbringing the unwanted female child till the date she attains majority and further stated that she is economically so weak that it had become very difficult for her to maintained and upbring the child as she has already four children and compensation of Rs. 60,000/- is to meager against the demanded compensation of Rs. 5,00,000/- towards maintenance and upbringing the female child.
4) After hearing both the parties and on perusal of the records the Commission is satisfied that the complainant/respondent becomes consumer qua the appellants/OPs and the hospital, no doubt, is a government hospital maintained and run by government of NCT of Delhi, but Hospital do charge certain amounts for providing certain types of specialized medical facilities to the patients and it was held by the Honble Supreme Court in the case titled Indian Medical Association V/s V.Shanta (AIR 1995 SC (4) I) that the government hospitals cannot be absolved from their liability absolutely in cases of medical negligence.
5) Keeping in mind the view of the Honble Apex Court the plea of the appellants cannot be entertained that the government hospital is not amenable to jurisdiction of the District Forum and the appellants herein despite being a Government Hospital, falls perfectly under the purview and Jurisdiction of Consumer Foras. The submissions made by the appellants that the government hospital treats the masses and there can be some decree of negligence somewhere or the else, also does not hold good and the District Forum had rightly observed that the government hospitals should be more conscious in carrying out tubectomy operations.
6) The clause/under taking in the consent letter seads: I know that for all practical purpose this operation is permanent and that after the operation I will be unable to have any more children.
I also know that there are still some chances of failure of the operation, for which the hospital/institution and operating, doctor will not be held responsible by me or my relatives or any other person whomsoever. I will report to the centre/doctor if there is any missed menstrual cycle of mine/my spouse within two weeks. No doubt this clause/undertaking stipulates that the patient who had underwent tubectomy operation shall report to the centre/Doctor if there is any missed menstrual cycle within two weeks and this clause also clearly states that the patient had understood that there are still some chances of failure of the operation and for that hospital/institution and operating doctor will not be held responsible.
The undertaking is unambiguous, but the contention of the respondent/complainant is that she was never told about the same and she was unable to understand what was written in the consent letter because the same was in English language, nor the specific information that there are few chances of failure of tubectomy operation was never told to her nor prominently displayed anywhere in the hospital or in the room of the doctor where she was examined as well as and outside the operation theater and these submissions of Respondent/Complainant were not denied by the Appellant/OP also.
The Respondent/Complainant had submitted that this fact amounts to deficiency on the part of the hospital and if she would have been told in advance that the she can conceive even after the tubectomy operation then she should have taken more precautions and would have adhered to the clauses of consent letter and would have reported to the doctor but inspite of this she went to the doctor though a little bit late and told the doctor that she had missed menstrual cycle which the doctor also confirmed and told that conceivment had taken place.
The respondent/complainant had relied upon the judgment of Honble Supreme Court titled State of Haryana & Ors. V/s Smt. Santara decided on 24.04.2002. But the facts of this case were different as of Respondent/Complainants case, in that case Smt. Santara was awarded compensation because of negligence of the doctor who performed the sterilize operation and hospital had admitted in that case that Smt. Santara was not operated for her left tube and was operated only for the right tube and in that went issuance of certificate to her of sterilization, amounted to gross negligence on the part of the doctor.
7) No doubt in certain cases forum and courts as well as Foreign Court had awarded compensation in failure of sterilize operation because the aggrieved went for sterilization operation only for socio economic reasons and damages were awarded to meet the expenses for upbringing the child till majority, as the prime motive for sterilization was to curb family resources which the failed operation, had, failed in achieving that objective of the operated mother. But in recent judgment of Honble National Commission on which appellant have relied upon titled as Parivar Seva Sanstha & Ors. V/s Jagdish & Ors. Honble National Commission had held that merely because of woman having undergone a sterilization operation becomes pregnant and delivered a child does not make her entitled to compensation on account of unwanted pregnancy or unwanted child and claim in such type of cases can be sustained only if there was negligence on the part of surgeon in performing the surgery and not on account of child birth.
Similar view was taken by Honble Supreme Court in the case titled State of Punjab V/s Shiv Ram & Ors. (2005) 7 SCC 1. The Honble Supreme Court in this case had said that, proof of negligence shall have to satisfy Bolams test, (1975) 2 Aee 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. Once 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.
8) From the above submissions it is very much clear that the persons who went for tubectomy operation are not entitled for the compensation on account of failure of the same. Keeping in view this menace Honble Supreme Court after considering all the facts in such type of cases of failure of tubectomy operation due to which the operate claims that they had underwent lot of trauma and burdened with high cost of upbringing the new born child even after the fact that the family are already having many children directed the State Governments to form some policy to compensate the patient who are victims of failed sterilization operation and other related miseries due to sterilization as well as death caused due to sterilization in hospital, and the Government of NCT of Delhi in compliance of the Honble Sureme Court directions given on 01.03.2005 and 05.10.2005 in but petition (Civil) No. 209/2003 of Ramakant Rai and Ors. V/s Government of India & Ors, brought out the scheme of ex-gratia compensation to the sterilization acceptors in Delhi vide there scheme no. F8 (283)/Ply/DFW/2001/3132-97 dt. 16.03.2006 vide which the acceptors of sterilization operation, became entitled for an amount of Rs. 20,000/- in case of failure of sterilization operation and insurance company was directed to make direct payments of the claims of the acceptors of sterilization directly to the acceptors without any hassle.
9) As far as the other ground of the appellant that the same District Forum in similar case of sterilization failure operation had directed the complainant to move before the concerned insurance company for compensation purpose as per the Delhi Government Policy of Ex-Gratia Compensation and in this present case of Mrs. Babita same District Forum had awarded compensation under different heads which reflects the arbitrary attitude of the District Forum. This ground of Appellant/OP is not correct because the present case of Mrs. Babita was decided by the District Forum on 18.10.2008 whereas the case of Mrs. Dulari Devi where she was directed to approach the insurance company for payment of ex-gratia payment was decided on 15.11.2008, so from the Judgment dt. 15.11.2008 it is clear that the District Forum rectified itself and ordered as per the policy of the Government of NCT of Delhi for payment of ex-gratia payment.
As regards the quantum of compensation is concerned, for the purpose of consumer Protection Act, the word compensation has a wide connotation as has been provided by the Supreme Court in Ghaziabad Development Authority V/s Balbir Singh (2004) 7 CLD 861(SC). The word compensation appearing in section 14(i) (d) of the Act has been explained by the Supreme Court as under:-
The word compensation is of a very wide connotation.
It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The commission/forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.
Such compensation is for vindicating the strength of law.
10) Taking into consideration the above submissions of both the parties and discussions we are of the view that the Complainant/respondent is bound by the consent letter and under taking mentioned in the consent letter and the Complainant/Respondent is strictly bound by the same. Accordingly on that account the complainant doesnt become entitled for any type of compensation towards failure of tubectomy operation and cannot claim any amount for the upbringing of the child which have born after the failure of the tubectomy operation, inspite of their poor economic conditions and socio economic status, but the hospital had definitely been deficient in providing their services to their patients/acceptors of tubectomy operation particularly for not displaying prominently the very important fact that there is some percentage of failure of sterilization operation as well as the hospital had not put any type of boards/hording in the hospital or in the consultation room of the doctor or outside the operation theater informing this fact and follow up instructions regarding missed menstrual cycle even after tubectomy operation as well as regarding Govt. of NCT of Delhi scheme for Ex-Gratia payment in case of failure of tubectomy operation. This is a grave deficiency on the part of the hospital for which the poor people suffers and on this count the doctor/hospital i.e. the appellant/OP are definitely required to compensate the respondent/complainant.
11) Accordingly the appeal is partly allowed and the orders of the District Forum dt. 18.10.2008 passed in complaint case no. 142/05 are modified as follows:
i.
The appellant-1/OP-1 shall pay a compensation of Rs. 1,00,000/- (Rs. One Lac Only) to the complainant/respondent for deficiency in providing service, this will include cost of litigation also.
ii.
The complainant is free to move to the insurance company for Ex-Gratia compensation purpose and file its claim there as per policy of Government of NCT of Delhi made under directions of Honble Supreme Court for ex-gratia payments to the acceptors of failed sterilization operation/tubectomy operation. And the insurance company shall pass the claim of the respondent/complainant within thirty days from the date of filing of the claim.
12) The above orders be complied with by the Appellant-1 / OP-1 within thirty days from the date of receipt of these orders.
13) The Principal Secretary Health is directed to ensure that all Hospitals/Nursing Houses in Delhi Prominently Display the guide lines to be followed by the acceptors of Tubectomy operations as well as failure percentage of tubectomy operations and the Ex-Gratia compensation scheme of the Govt. of NCT of Delhi in respect of acceptors of sterilization /tubectomy operations.
14) The appeal is disposed of in above terms.
15) Copy of the order be made available to the parties as per law and copies be sent to the concerned District Forum as well as to Chief Secretary and Principal Secretary Heath Govt. of NCT of Delhi for compliance and case file be consigned to record room.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima