State Consumer Disputes Redressal Commission
Anupama vs Govt. Multi Speciality Hospital on 8 July, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 266 of 2013 Date of Institution : 21.06.2013 Date of Decision : 08.07.2013 Anupama w/o Sachida Nand @ Anand Kumar, r/o H.No.1229/5, Sector 45, Burail, Chandigarh. Appellant /Complainant V e r s u s 1. Govt. Multi Speciality Hospital, Sector 16, Chandigarh, through its Director. 2. Medical Superintendent, Govt. Multi Specialty Hospital, Sector 16, Chandigarh. ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Ms. Saloni Sharma, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 15.05.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that that complainant was having a daughter and a son. Thus, she alongwith her husband decided that their family was complete. The complainant approached the Opposite Parties (now respondents) for sterilization operation, whereupon, she was assured by them, that she would not conceive a child, after three stitches operation. The complainant and her husband gave consent for three stitches sterilization operation. The complainant was admitted, in the Opposite Parties Hospital, for the said purpose, on 12.10.2003. After surgery/sterilization operation, the complainant was discharged on 17.10.2003, vide discharge certificate, copy whereof is Annexure C-1. As per the complainant, the Opposite Parties, charged an amount of Rs.1500/-, from her, for the said operation. It was stated that, thereafter, nothing happened, and all of a sudden, in the year 2011, the complainant suffered some medical problem and consulted the Doctor. The Doctor advised her to undergo some medical tests, as he was apprehending pregnancy.
3. On 22.09.2011 medical report Annexure C-2 was received from the Panchvati Diagnostic Centre-Charitable Trust, Sector 46-B, Chandigarh, showing the complainant having 16 weeks pregnancy. On 03.03.2012 a female child was born to the complainant. It was further stated that the complainant had to give birth to the said child, under compulsion, because of the gross medical negligence of the Opposite Parties, in conducting the sterilization operation aforesaid. The Birth Certificate of the female child aforesaid, issued by the Chandigarh Administration, is Annexure C-3.
4. It was further stated that the complainant being a poor lady and mother of two children, after coming to know of the pregnancy, in the year 2011, went in a state of shock, as her husband hardly earned money to meet the needs of the family. It was further stated that due to the negligence, on the part of Doctors of the Opposite Parties Hospital, resulting into a birth of the third unwanted female child, the complainant had been burdened financially. It was further stated that the Opposite Parties, were asked to compensate the complainant, for their medical negligence, thereby laying unnecessary financial burden, on her, towards the up-bringing of unwanted child, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to medical negligence, constituting deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay compensation, in the sum of Rs.4,00,000/- alongwith interest @18% p.a., till realization, on account of gross medical negligence; Rs.50,000/- for mental agony and physical harassment; and cost of litigation, to the tune of Rs.25,000/-.
5. The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer. It was further pleaded that the complaint was not maintainable. It was further pleaded that the family planning operation, is always done free-of-cost, under the National Family Welfare Programme, so no fees was charged, from the patient/complainant, as claimed by her. It was stated that, no documentary evidence was produced by the complainant, that she had paid a sum of Rs.1500/-, for the operation, in question, and, as such, the Consumer Complaint was not maintainable. It was admitted that the complainant approached the Opposite Parties, for sterilization operation, and was operated on 12.10.2003. It was further stated that the failure rate of laparoscopic sterilization is 0.2 0.6%, while that with the Minilap is 0.10.3%. It was further stated that this fact, was supported by an extract, from the literature of Dr. D.C. Dutta, copy whereof is Annexure OP-1. It was further stated that it could not be commented/assured by any Doctor, that there was no failure rate with either of the two methods, aforesaid. It was further stated that, as per the report dated 22.09.2011 Annexure C/2, of the Panchvati Diagnostic Centre-Charitable Trust, Sector 46-B, Chandigarh, the patient/ complainant was having 15 weeks 3 days pregnancy, and as per the version of the appellant/complainant, the Doctor in the private clinic refused abortion, as she was having 16 weeks pregnancy, and was under high risk. It was further stated that the complainant never reported to the Govt. Multi Specialty Hospital, Sector 16, Chandigarh, or any other Government Institution, under the Chandigarh Administration. It was further stated that, as per the Medical Termination of Pregnancy Rules, medical termination of pregnancy could be done upto 20 weeks. It was further stated that the termination of pregnancy would have been done, had the complainant, reported to the Govt. Multi Specialty Hospital, Sector 16, Chandigarh, or any other Government Institution, when she was having 16 weeks pregnancy. It was further stated that the chances of failure of such operations, in certain cases, were duly informed to the patient/complainant. It was further stated that neither there was any medical negligence, nor deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In her rejoinder, the complainant reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
10. We have heard the Counsel for the appellant, at the preliminary stage, and have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellant/complainant, submitted that since the appellant/complainant, underwent the sterilization operation, as per the advice of the Doctors, she could not expect to give birth to a child. She further submitted that, due to the negligence of the Doctors of the Opposite Parties, in conducting the said operation, the complainant gave birth to a female child, which she (complainant) never wanted, as her financial resources were not such, as she could support a family of three children. She further submitted that there was an advance stage of pregnancy, and, as such, the private Doctors refused to abort the child, and advised that operation, in her case, was replete with risk, and, therefore, she did not undergo the same. She further submitted that the complainant paid a sum of Rs.1500/-for the operation, in question, to the Opposite Parties. She further submitted that the District Forum was wrong, in coming to the conclusion, that neither the complainant was a consumer, nor there was any medical negligence, on the part of the Opposite Parties. She further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
12. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. The first question, that requires determination, is, as to whether, the complainant fell within the definition of consumer or not. For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(1)(o), defining the consumer and service respectively are extracted as under:-
(d) "Consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii)[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation.
For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;] Section 2(1)(o) defines service as under:-
(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
13. No doubt, the complainant stated that she underwent sterilization operation, for which she deposited Rs.1500/-, with the Opposite Parties, alongwith other expenses of medicines, and, as such, she hired their services, for consideration, and, thus, she fell within the definition of a consumer. However, no document was produced, by the complainant, to the effect, that she deposited a sum of Rs.1500/-, as fees/charges, towards operation/medicines. In our considered opinion, if the complainant had deposited the fees, with the Opposite Parties, which is a Government Hospital, she would have definitely been issued a receipt for the same, which she could produce, on record, to prove her version. On the other hand, the case of the Opposite Parties/respondents, was that since the family planning operation was done free-of-charge, under the National Family Welfare Programme, they did not charge anything from the complainant, as claimed by her. Under the aforesaid programme, after conducting the sterilization operation, it was the patient, to whom the compensation towards incentive, for such operation, was paid by the Family Welfare Department. It means that the complainant availed of the services of the Opposite Parties, free-of-charge. Since the complainant did not hire the services of the Opposite Parties, for consideration, she did not fall within the definition of a consumer. In Paramjit Kaur and others Vs. State of Punjab and Another, 1997 (1) CPC 308 (Punjab State Commission) and Dr. Preet Kanwal Bedi Vs. Preet Kumari, 2011 (1) CPC 153 ( Punjab State Commission) it was held that the persons availing of free treatment or services, under the All India Post Partum Programme, could not be said to have hired the services for consideration, rather incentives are given to them, and, also to the Doctors, and such persons, could not be termed as consumers under the Act. In Chief Executive Officer, Zila Parishad and Others, Vs. Sagunabai Navalsing Chavan, 2009 (1) CPC 649 ( NC), a tubectomy operation was performed free-of-cost, in Rural Hospital, with payment of Rs.130/-, as incentive amount to the patient. The complaint made by the patient/complainant, who underwent tubectomy operation, was held to be not maintainable, by the Honble National Consumer Disputes Redressal Commission, New Delhi, on the ground that such a person did not fall within the definition of a consumer. In this view of the matter, it is held that the complainant did not fall within the definition of a consumer, as she did not hire the services of the Opposite Parties, for consideration, but, on the other hand, she was paid incentive, under the aforesaid programme. The Consumer Complaint was, thus, not maintainable. The District Forum was also right, in holding so.
14. Admittedly, the complainant underwent sterilization operation, on 12.10.2003, in the Hospital of the Opposite Parties. She was discharged on 17.10.2003, vide discharge certificate, copy whereof is Annexure C-1. She conceived a child, in the end of 2011. The question, arises, as to whether, the sterilization operation could be said to be 100% foolproof, after which, there could not be conception. There is nothing, on the record, that the Doctors who conducted the sterilization operation upon the complainant, did not exercise reasonable skill and care. As per the literature of Dr.D.C.Dutta Annexure OP-1, the reported failure rates following female sterilization ranged from 0.2% to 0.9% (infact 0.6%). According to the Opposite Parties, the patients are duly informed about the chances of failure of such operations, in certain cases. In this case, the complainant did not conceive for 8 years. Therefore, it could not be said that the Doctors performed the operation without exercising reasonable skill and care. Sterilization operation could not guarantee 100% success. No expert evidence was produced by the complainant that the doctors who performed the operation were negligent, in any manner. Thus, the medical negligence, on the part of the Doctors was not proved. In State of Punjab Vs. Shiv Ram and others (2005) 7 Supreme Court Cases 1, it was held as under :-
25. 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 Bolams 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.
26. The cause of failure of the sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at subsequent operation of sterilization. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation.
27. Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court in State of Haryana vs. Santra 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 and a decree for compensation in tort was held justified. The case thus proceeds on its own facts.
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 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 childbirth. 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 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.
15. The principle of law, laid down, in the aforesaid case, was that the cause of action for claiming compensation, in cases of failed sterilization operation arises, on account of the negligence of surgeon, and not on account of the birth of a child. Failure due to natural causes would not provide any ground for claim. In the absence of any medical evidence, having been produced by the complainant, that it was on account of the medical negligence of the Doctors, who conducted the operation, on her, that she conceived, by no stretch of imagination, it could be said that the Opposite Parties were deficient, in rendering service, especially, when there was no 100% guarantee, of success, as per the literature, referred to above. The District Forum was, thus, right in holding that there was no medical negligence, in performing sterilization operation, upon the complainant, by the Doctors of the Opposite Parties. The findings of the District Forum, in this regard, being correct, are affirmed.
16. As per the evidence, produced, on record, the complainant came to know of her pregnancy on 22.09.2011. The medical report Annexure C-2 dated 22.09.2011, shows that the complainant was having a pregnancy of about 15 weeks 3 days. However, the complainant did not go in for abortion, immediately, thereafter. Copy of the Out Patient Card Annexure C-5 shows that the complainant went for check up to the doctors of the Govt. Multi Specialty Hospital, Sector 16, Chandigarh, only on 17.01.2012. It means that, at that time, she was having a pregnancy of about 27 weeks. According to the Medical Termination of Pregnancy Rules, medical termination of pregnancy could be done upto 20 weeks, which would have been done, had the complainant reported to the Govt. Multi Specialty Hospital, Sector 16, Chandigarh or any other Government Institution/Hospital, when she came to know of her pregnancy of about 15 weeks and 3 days. Since, on 17.01.2012, the complainant was having more than 27 weeks pregnancy, under these circumstances, abortion of pregnancy could not be done. It means that the complainant, of her own volition, gave birth to the female child. She could get the pregnancy aborted, had she contacted the Opposite Parties, or any other Government Hospital/Institution, when it was of 20 weeks. There would have been no danger to her life, had she opted for termination of pregnancy upto 20 weeks.
Since, she opted for giving birth to a female child, of her own volition, the Opposite Parties could not be fastened with any liability.
17. The Counsel for the appellant/complainant, however, placed reliance on State of Haryana and ors. Vs. Smt. Santra, AIR 2000 Supreme Court 1888, in support of her contention, that the complainant conceived, on account of the medical negligence of the Doctors of the Opposite Parties, even after sterilization operation. The facts of State of Haryana and ors.` case (supra), are clearly distinguishable, from the facts of the instant case. In that case, medical negligence of the Doctor, who conducted sterilization operation, was proved. It was, under these circumstances, held that since the Doctor was negligent, in performing the sterilization operation, resulting into conception, the State of Haryana and others were liable to pay compensation/damages, to the complainant, for birth of an unwanted child, upto the age of puberty. The facts the State of Haryana and ors.` case (supra), being clearly distinguishable, from the facts of the instant case, no help can be drawn, by the Counsel for the appellant therefrom. The submission of the Counsel for the appellant/complainant, therefore, being devoid of merit, must fail, and the same stands rejected.
18. No other point, was urged, by the Counsel for the appellant.
19. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
20. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
July 8, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg