National Consumer Disputes Redressal
St. Stephens Hospital & Anr. vs Smt. Shalini on 31 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2758 of 2008 (From the order dated 21.01.2008 in Appeal No.A-236/05 of the State Consumer Disputes Redressal Commission, Delhi) 1. St. Stephens Hospital Through C.M.O., Near Tis Hazari Court, Delhi 110 054. 2. Dr. (Mrs.) V. Bhalla, Family Planning Department St. Stephens Hospital Near Tis Hazari Court, Delhi 110 054 Petitioners/Opp.Parties (OP) Versus Smt. Shalini W/o Shri Vinold Kumar R/o H.No.994, Alipur, Delhi Respondent/Complainant
BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the Petitioner : Mr. Sahil Bhalaik, Proxy Advocate for Mr. Rajeev Sharma, Advocate For the Respondent : Mr. P.C. Thakur, Advocate Mr. Lave Kumar Sharma, Advocate PRONOUNCED ON 31st May, 2013 O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the Petitioner against the impugned order dated 21.1.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, the State Commission) in Appeal No.A-236/05 St. Stephens Hospital & Anr. Vs. Smt. Shalini by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/respondent got herself admitted in OP/petitioners hospital on 25.1.1998 for the purpose of delivery. She delivered a female child on 26.1.1998 and she was advised for abdominal tubectomy operation to become tension free. On 28.1.1998, operation was done and OP assured complainant and her husband that successful sterilization has been performed and she would not conceive any child in future. In September-October, 2000, complainant felt pregnancy and contacted Hindu Rao Hospital, where pregnancy was confirmed and ultimately, she gave birth to a female child on 27.7.2001. Alleging medical deficiency in sterilization operation on the part of OP, complainant filed complaint for claiming Rs.25,000/- towards general expenses for delivery, etc., and Rs.4,00,000/- for bringing up the unwanted child, her residence, medical attendance, treatment, day-to-day general expenses and her marriage. OPs contested complaint, filed written statement and submitted that sterilization was performed with utmost skill, due care and caution by doctor, who was possessing necessary qualifications and experience for performing the procedures. On opening the abdomen, the right fallopian tube could not be identified due to dense adhesions and right fallopian tube could not be legated. The fact was explained to the respondent and she was warned that there was a possibility of a pregnancy later in view of her unlegated right tube. It was explained to the respondent and her mother that the respondent should adopt other contraceptive methods or her husband should undergo vasectomy. The possibility of failure was recorded in the hospital records and the same were signed by the respondent and her mother affixed her thumb impression thereon. This fact clearly shows that there was no negligence on the part of the OP, as the complainant and her mother were told that due to dense adhesions the right fallopian tube could not be identified and therefore there was a chance of pregnancy and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and awarded Rs.1,00,000/- as compensation and Rs.2000/- as cost of litigation. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard Learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that, as right fallopian tube could not be identified and legated, respondent was advised that her husband should undergo vasectomy and further submitted that sterilization is not 100% safe and secure for preventing pregnancy, even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that Annexure A is a forged document and petitioner assured that operation had been successful and, as even after operation, respondent conceived child, learned State Commission has not committed error in dismissing appeal; hence, revision petition be dismissed.
5. It is admitted case of the parties that respondent delivered a female child in petitioners hospital on 26.1.1998 and on 28.1.1998, petitioner-doctor performed abdominal tubectomy operation of respondent. This fact is not denied that respondent gave birth to a child after operation on 27.7.2001. The core question to be decided in this matter is whether; firstly was there any medical negligence in performing operation and secondly, whether; sterilization is 100% safe and secure procedure for not conceiving child in future.
6. As far medical negligence is concerned, learned Counsel for the petitioner has drawn our attention towards Annexure A in which it has been mentioned that one tube could not be identified and in such circumstances, her husband should undergo vasectomy. Almost the same thing has been repeated in Annexure A in other persons handwriting, which bears signatures of respondent and thumb impression of respondents mother. Learned Counsel for the respondent does not dispute signatures of the respondent on Annexure A. It is true that Annexure A contains same particulars in two different handwritings, but merely because same thing has been repeated in other persons handwriting, it cannot be inferred that this document is forged one particularly when it bears signatures of respondent. Perusal of Annexure A clearly reveals that on account of dense adhesions, right fallopian tube could not be detected and it was clearly mentioned that operation may be unsuccessful and her husband should go for vasectomy. In such circumstances, no medical negligence can be imputed on the part of petitioner and respondent is not entitled to get any compensation. Learned Counsel for the petitioner has also placed reliance on (2005) 7 SCC 1 State of Punjab Vs. Shiv Ram and others, which has also been referred by learned State Commission in its judgement in which it was observed as under:
28. The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub- section (2) of Section 3 provides :
"Explanation II. ____ Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman."
29. And that provides, under the law, a valid and legal ground for termination 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.
30. 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.
In the light of aforesaid judgment, it becomes clear that sterilization is not 100% safe and secure and after getting 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 and compensation for maintenance and upbringing of such a child cannot be claimed. Learned State Commission has not given any reasoning for not agreeing with the aforesaid judgment.
7. After confirmation of pregnancy, respondent should have filed complaint immediately, but she waited till delivery and it appears that as female child was delivered, she filed complaint, which is not fair on her part.
8. In the case in hand, after sterilization operation, when respondent felt pregnancy in September-October 2000, if she was not willing to bear the child, she could have terminated it as this is legal and permissible under the Medical Termination of Pregnancy Act, 1971 and if she opted for bearing the child, she cannot opt for compensation for bringing up of the child and expenses to be incurred on her marriage.
8. In the light of aforesaid discussion, we are of the view that learned District Forum has committed error in allowing complaint and granting compensation and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.
9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 21.1.2008 passed by learned State Commission in Appeal No.A-236/05 St. Stephens Hospital & Anr. Vs. Smt. Shalini is set aside and complaint is dismissed. There shall be no order as to costs.
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( K.S. CHAUDHARI, J) PRESIDING MEMBER ..Sd/-
( DR. B.C. GUPTA ) MEMBER k