National Consumer Disputes Redressal
Hasmukh F. Prajapati (Dr.) And Anr. vs Shashikalaben on 8 January, 2007
Equivalent citations: I(2007)CPJ318(NC), AIR 2007 (DOC) 239 (NCC), 2007 (4) AKAR (NOC) 569 = 2007 (1) CPR 294 (NC) (NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NE, (2007) 1 CPR 294, (2007) 1 CPJ 318, (2007) 3 ALL WC 4(13)
ORDER
B.K. Taimni, Member
1. Appellants were the opposite parties before the State Commission, where the respondent/complainant had filed a complaint alleging a case of medical negligence against the appellant.
2. Very briefly the facts leading to filing the complaint were that the complainant who had approached the appellants for sterilisation (tubectomy) operation as she had been having continuous problem with the delivery of children underwent sterilisation operation performed on 7.11.1994 by the appellant, for which she was charged a fee of Rs. 1,500 (as per the appellants the appellants the sterilisation operation was done only on 1.11.1994 and was discharged on 3.11.1994). It was the case of the complainant that she became 'pregnant' despite 'sterilisation operation' and in these circumstances a complaint allegingmedical negligence was filed before the State Commission. The case was contested by the appellants. The State Commission after hearing the parties and perusal of material on record allowed the complaint and directed the appellant to pay Rs. 1,00,000 by way of compensation along with interest @ 12% p.a. from 10.7.1996 till payment as also cost of Rs. 5,000. Aggrieved by this order, this appeal has been filed before us.
3. The notice was issued on 27.7.2006 for 1.9.2006. The notice issued to the appellant's Counsel came back with the postal remarks 'left'. Fresh notice was sent to both the parties on 11.9.2006 for 8.1.2007. The notice has not come back unserved hence it was deemed to have been served.
4. Through a letter from the respondent, she had stated that she had already filed a reply to the appeal on 13.3.2000 and since she is unable to hire a lawyer being too poor, reply filed by her be treated as her arguments, and since the appellant does not appear even today despite service, we go on to pass the order based on material on record.
5. There is no disputing the fact that the respondent-complainant did undergo sterilisation operation (tubectomy) in November 1994 the date being 1st or 7th (the exact date shall have no bearing on the merits of the case). It is also a matter of record that despite sterilisation operation, the complainant did not become pregnant. We have seen the material on record especially the Memo of Appeal filed before us as also hospital record brought on the file. In fact, in the Memo of Appeal, there is no stand taken by the appellant as to how or under what circumstances, or under what condition, the complainant became pregnant despite undergoing sterilisation operation. Not only this we have seen the hospital record brought on the file and find that no material relating to the sterilisation operation on 1st or 7th November, 1994 has been brought on record. In its absence we are of the view that the appellant has failed to substantiate his contention that all 'due care' was taken while carrying out this operation. There is 'material' on record but that relates to another period than the period relating to when the sterilisation operation was performed. We are sure that when the operation was carried out, the services of an Anaesthetist were engaged, then the record should have been there for us to know as to what was done, there is nothing on record to indicate that both the fallopian tubes were dealt with. We can only draw an adverse inference as in similar conditions in the case of State of Haryana and Ors. v. Smt. Santra I (2000) CPJ 53 (SC), decided by Hon'ble Supreme Court, wherein it was found that despite sterilisation operation pregnancy did occur. When the matter was gone into further, it was found that the operation related only to the right fallopian tube and the left fallopian tube was not touched, which indicated that the complete sterilisation operation was not done. In the instant case no material brought on record by the appellant in support of his contention that due care was taken; if so what was it? In the absence of the material, we are constrained to draw an adverse inference.
6. In the aforementioned circumstances, we find no infirmity in the orders passed by the State Commission to call for any interference as according to us this is a clear case of medical negligence based on our drawing an adverse inference of non-production of medical record relating to sterilisation operation by the appellants.
This appeal has no merit, hence dismissed.
Keeping in view the facts and circumstances, parties are left to bear their own costs.