National Consumer Disputes Redressal
Mahila Chikitsalaya & 4 Ors. vs Sumitra & Anr. on 20 February, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3201 OF 2018 (Against the Order dated 15/05/2018 in Appeal No. 751/2017 of the State Commission Rajasthan) 1. MAHILA CHIKITSALAYA & 4 ORS. THROUGH SUPERINTENDENT SANGANERI GATE, MAHILA CHIKITSALAYA, JAIPUR RAJASTHAN 2. PRINCIPAL, SWAI MAN SINGH MEDICAL COLLEGE, JAWAHAR LAL NEHRU MARG, JAIPUR RAJASTHAN 3. HIGHER EDUCTION (MEDICAL) MINISTRY THROUGH ITS SECRETARY, RADHA KRISHAN SHIKSHA SANKUL, JAWAHAR LAL NEHRU MARG, JAIPUR RAJASTHAN 4. CHIEF SECRETARY, GOVENMENT OF RAJASTHAN STATE SECRETARIAT JAIPUR RAJASTHAN 5. MEDICAL HEALTH & FAMILAY WELFARE DEPARTMENT, GOVERNMENT OF RAJASTHAN THROUGH ITS SECRETARY, SECRETARIAT, JAIPUR RAJASTHAN ...........Petitioner(s) Versus 1. SUMITRA & ANR. W/O. SHRI MURLIDHAR CASTE- BRAHMIN, RESIDENT OF VILLAGE AAKODIYA TEHSIL CHAKSU JAIPUR RAJASTHAN 2. MURLIDHAR, S/O. SHRI RAMESHWAR PRASAD SHARMA, R/O. VILLAGE AAKODIYA, TEHSIL CHAKSU, DISTRICT-JAIPUR RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. VISHAL MEGHAWAL, ADVOCATE FOR THE RESPONDENT : NEMO
Dated : 20 February 2024 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 15.05.2018 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur, Bench 1 (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No. 751/2017 in which order dated 23.05.2017 of District Consumer Disputes Redressal Forum, Jaipur III, Jaipur (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 09/2012 (old no. 769/2008) was challenged, inter alia praying to set aside the order passed by State Commission.
2. While the Revision Petitioner(s) (hereinafter also referred to as OPs) were Respondents and the Respondent(s) (hereinafter also referred to as Complainants) were Appellants in the said FA/751/2017 before the State Commission, the Revision Petitioner(s) were OPs and Respondent(s) were Complainants before the District Forum in the CC no. 09/2012 (old no. 769/2008).
3. Notice was issued to the Respondent(s). On account of absence of respondents despite service, vide order dated 13.12.2023, respondents were proceeded ex-parte. Petitioners filed Written Arguments/Synopsis on 31.10.2023.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
The complainant underwent sterilization surgery after having two children, and the doctors at OP-1 assured her that the operation was successful. After the operation of complainant, she was discharged on 12.04.2005. However, on 28.02.2007, during an examination at OP-1(Hospital), the doctors informed her that she was pregnant, causing her significant mental distress. The doctors confirmed that the sterilization procedure had failed. Subsequently, on 19.09.2007, the complainant gave birth to her third child, a daughter, at OP-1. This failure of the sterilization procedure constitutes negligence and deficiency of service on the part of OP-1. The complainant seeks compensation for the damages incurred, as outlined in the complaint, along with reimbursement of expenses.
5. Vide Order dated 23.05.2017, in the CC no. 09/2012 (old no. 769/2008) of the District Forum has dismissed the complaint.
6. Aggrieved by the said Order dated 23.05.2017 of District Forum, Respondents/Complainants appealed in State Commission and the State Commission vide order dated 15.05.2018 in FA No. 751/2017 has allowed the appeal and awarded Rs. 30,000/- as per Family Planning Indemnity Scheme to the complainants; directed OPs to pay Rs. 50,000/- as compensation towards mental agony to the complainants along with Rs. 10,000/- as litigation cost.
7. Petitioner(s) have challenged the said Order dated 15.05.2018 of the State Commission mainly on following grounds:
The State Commission's order is erroneous as it is without due consideration of the merits and submissions presented by the petitioners/OPs. The State Commission have overlooked crucial facts in the case. Specifically, they failed to acknowledge that the complainant conceived approximately two years after the operation on 28.02.2007.
According to medical opinion, the complainant could have opted for a free abortion at any Government Hospital. Despite this option, the complainant chose to carry the pregnancy to term, giving birth to the child on 19.09.2007. Therefore, there was no deficiency of service on the part of the OPs. Additionally, the complainant was informed at the time of the operation that the sterilization procedure might not be successful.
The State Commission's determination of the OPs' guilt of deficiency of services and the imposition of Rs. 50,000/- as compensation is erroneous. Even in cases of sterilization failure, as per the circular dated 12.01.2009, the prescribed compensation is Rs. 30,000/-.
8. Heard counsel of Petitioners. Due to absence of respondents despite service, they were proceeded ex-parte. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, Oral Arguments advanced during the hearing, and contentions raised before the State Commission are summed up below.
The counsel for the petitioners/OPs asserted that the complainant opted for the tubectomy procedure due to her financial condition, aiming to prevent further conception. However, subsequent to the operation conducted on 12.04.2005, the complainant gave birth to a girl child on 19.09.2007, indicating a failure of the tubectomy procedure. The complainant alleges the OP, who performed the operation, was negligent in their duty to ensure the effectiveness of the procedure.
The counsel argued that the complainant is not a consumer under the Consumer Protection Act as the operation was performed free of cost and without any consideration. Additionally, the complainant had the option to terminate the pregnancy at a government hospital free of cost, as advised by doctors, but chose to keep the child despite conceiving about two years after the tubectomy operation.
The District Forum dismissed the complaint, stating that unsuccessful outcomes in such operations are rare exceptions, and the failure of the operation alone cannot establish negligence on the part of the medical officer. The complainants appealed to the State Commission, which granted them Rs. 30,000/- under the Family Planning Indemnity Scheme, along with Rs. 50,000/- as compensation for mental and physical discomfort, and Rs. 10,000/- for litigation expenses.
The counsel for OPs further contends that the State Commission overlooked that, as per a circular dated 12.01.2009, the complainant is entitled to only Rs. 30,000/- in case of sterilization failure.
Before the State Commission, the respondent herein has contended that she undergone sterilization operation on 12.04.2005. Thereafter she got pregnancy again and delivered a female child on 19.09.2007 hence, it is deficiency on the part of the respondents and claim should have been allowed.
9. We have carefully gone through the orders of the State Commission, District Forum, and other relevant record. Extract of relevant paras of order of State Commission is reproduced below:-
"Facts are not in dispute that the appellant undergone operation for sterilization on 12.4.2005 and thereafter she gave birth to female child on 19.9.2007. This fact alone shows deficiency on the part of the respondent. The case is of res ipsa loquitur and furthermore the respondent has not allowed the appellant the benefit of Family Planning Indemnity Scheme which was available to the appellant. Hence, it is not only the deficiency on the part of the respondent but also unfair trade practice. As per scheme on failure of sterilization the appellant is entitled for Rs. 30,000/- which has not been allowed to her. In view of the above, the appeal is allowed. The appellant is entitled for Rs. 30,000/- as per Family Planning Indemnity Scheme alongwith Rs. 50,000/- as compensation for mental and physical discomfort and agony and Rs. 10,000/- as cost of proceedings. The order be complied within one month otherwise the appellant is entitled for 9% interest from the date of filing of the complaint."
10. As was held by the Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. "
We are in agreement with the observation /findings of State Commission. There is no illegality or material irregularity or jurisdictional error in the order of State Commission, hence the same is upheld. Accordingly, RP is dismissed.
11. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER