State Consumer Disputes Redressal Commission
Rajni vs State Of Punjab on 5 March, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1130 of 2007
Date of institution : 21.8.2007
Date of decision : 05.3.2012
1. Rajni wife of Karnail Singh C/o Lakhwinder Singh son of Dharam Singh,
resident of Village Oind, Post Office Samana Kalan, Tehsil Chamkaur
Sahib, District Ropar.
2. Karnail Singh resident of Rajpura, District Patiala.
.......Appellants
Versus
1. State of Punjab through Secretariat, Ministry of Health, Punjab,
Chandigarh.
2. Director, Punjab Health Systems Corporation, Punjab, Chandigarh.
3. S.M.O. Civil Hospital, Ropar.
4. Dr. Neel Kamal, Medical Officer, Civil Hospital, Ropar.
5. C.M.O. Civil Hospital, Ropar.
......Respondents
First Appeal against the order dated 9.7.2007 of the
District Consumer Disputes Redressal Forum,
Ropar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : None.
For the respondents : None.
JUSTICE S.N. AGGARWAL, PRESIDENT:
VERSION OF APPELLANTS:
Rajni appellant No.1 is the wife of Karnail Singh appellant No.2. They are poor people and are labourers.
2. It was further pleaded that appellant No.1 went to the Senior Medical Officer, Civil Hospital, Ropar respondent No.3 for tubectomy operation as the First Appeal No.1130 of 2007. 2 appellants had already completed their family. The tubectomy operation was conducted by the respondents on 8.6.2006 vide CR No.163/TO 145. Certificate to that effect was also issued to the appellants by the respondents.
3. It was further pleaded that the tubectomy operation conducted by the respondents remained unsuccessful. Complaint was lodged to the higher authorities but to no effect. Because of the medical negligence by the respondents, appellant No.1 became pregnant and delivered a female child. It became expensive for the appellants to bring up the child and to provide her education. It created great mental tension and torture to the appellants. Hence the complaint for compensation amount of Rs.30 lakhs. VERSION OF THE RESPONDENTS:
4. The respondents filed the written reply by way of affidavit of Dr. Inder Dhir Gill, Medical Officer, Civil Hospital, Ropar on behalf of all the respondents. It was pleaded that the appellants were not consumers qua the respondents as the appellants had not hired the services of the respondents for consideration. It was denied if there was any deficiency in service on the part of the respondents. Rather appellant No.1 herself was negligent as she did not comply with the advice/instructions given by the respondents at the time of her admission for tubectomy operation.
5. On merits, it was admitted that tubectomy operation of appellant No.1 was performed by the respondents on 8.6.2006. It was successful. Appellant No.1 had already conceived a few days earlier and she was already pregnant on 8.6.2006. She carried the same pregnancy afterwards. She was suspected to be pregnant on the internal examination on the date of operation. The appellants were to report subsequently on that account. The appellants had undertaken to appear in the hospital within 15 days if she failed to get the monthly period. However appellant No.1 failed to appear in the hospital and failed to comply with the instructions issued by the respondents.
First Appeal No.1130 of 2007. 3
6. It was further pleaded that appellant No.1 visited the hospital on 4.10.2006 for termination of pregnancy. It was more than 22 weeks' old. As per the provisions of the M.T.P. Act, it was not legal to terminate a pregnancy which was more than 20 weeks' old. Therefore the birth of the child took place because of the fault on the part of the appellants.
7. It was denied if there was any deficiency in service on the part of the respondents. Dismissal of the complaint was prayed.
8. The appellants filed the rejoinder.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
9. Rajni appellant filed her affidavit Ex.C-1. The appellants also proved documents Ex.C-2 to Ex.C-4.
10. On the other hand, Dr. Inder Dhir Gill filed his affidavit Ex.D-5. The respondents also proved documents Ex.D-1 to Ex.D-4.
11. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 9.7.2007.
12. Hence the appeal.
DISCUSSION:
13. On the face of it, the appellants nowhere pleaded in the complaint if they had paid any consideration to the respondents for availing the tubectomy operation. Therefore the appellants are not the consumers qua the respondents. The word 'consumer' has been defined in Section 2(1)(d) of the Consumer Protection Act, 1986 as under:-
"2(1)(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 First Appeal No.1130 of 2007. 4 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) : [hired 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 than the person who [hired 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 purposes].
[Explanation - For the purpose of this clause, "commercial purpose' does not include use by a person 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;]"
14. The definition itself reveals that passing on some consideration is necessary to bring the appellants within the definition of consumer.
15. Moreover the word 'service' has been defined under Section 2(1)(o) of the Consumer Protection Act, 1986 which reads as under:-
(o) "service" means service of any description which is made available to potential [users and includes, but not limited to, the provisions of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, First Appeal No.1130 of 2007. 5 [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."
16. It is specifically mentioned in the definition of 'service' that free service is not a service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. Therefore the appellants are not the consumers qua the respondents nor the respondents were the service providers.
17. Hon'ble Supreme Court in the judgment reported as "State of Punjab v. Shiv Ram and others" AIR 2005 Supreme Court 3250 discussed this question in detail. The facts of the reported judgment read as under:-
"The plaintiffs-respondents respectively husband and wife, filed a suit against the State of Punjab, the appellant before us and a lady surgeon who was in the State Government's employment at the relevant time for recovery of damages to the tune of Rs.3,00,000/- on account of a female child having been born to them in spite of the wife-respondent No.2 having undergone a tubectomy operation performed by the lady surgeon."
18. After discussing some judgments and the books on the subject, Hon'ble Supreme Court was pleased to observe as under:-
"17. It is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable First Appeal No.1130 of 2007. 6 to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning."
19. Hon'ble Supreme Court in the aforesaid judgment in Shiv Ram's case (supra) was further pleased to hold as under:-
"23. 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 Bolam's 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." First Appeal No.1130 of 2007. 7
20. Hon'ble Supreme Court was pleased to hold that even if the tubectomy operation is performed with full care and caution and without any negligence even then there can be failure in tubectomy operations. In such cases it was the duty of the woman once she misses the menstrual cycle to visit the doctor and seek medical advice and if necessary seek termination of pregnancy which was legal and valid. It was so observed by the Hon'ble Supreme Court in para 26 of the Shiv Ram's case (supra).
21. It was further observed by the Hon'ble Supreme Court that the birth of a child in spite of tubectomy operation does not give a cause of action to the parents of the child. It was observed by the Hon'ble Supreme Court in Shiv Ram's case (supra) as under:-
"28. 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.
29. For the foregoing reasons, we are of the opinion that the judgments and the decrees passed by the High Court and courts below cannot be sustained. The trial court has proceeded to pass a decree of damages in favour of the plaintiffs-respondents solely on the ground that in spite of the plaintiff-respondent No.2 having undergone a sterilization operation, she became pregnant. No finding First Appeal No.1130 of 2007. 8 has been arrived at that will hold the operating surgeon or its employer-the State, liable for damages either in contract or in tort. The error committed by the trial court, though pointed out to the first appellate court and the High Court, has been overlooked. The appeal has, therefore, to be allowed and the judgment and decree under appeal have to be set aside."
22. In the present case, the appellants are claiming compensation only on the ground that an unwanted child had taken birth even after appellant No.1 had undergone tubectomy operation. It has been held by the Hon'ble Supreme Court that there could be cases where the tubectomy operations have failed but that alone is not sufficient to grant compensation to the woman who has given birth to the child.
23. In the present case, negligence on the part of the respondents is alleged merely because a child was born to appellant No.1 and not independently. As per the law laid down by the Hon'ble Supreme Court in Shiv Ram's case (supra) no such compensation can be awarded merely on the ground that a child was born to such a woman.
24. In view of the discussion held above, we do not find any merit in the present appeal and the same is dismissed.
25. The arguments in this case were heard on 2.3.2012 and the order was reserved. Now, the order be communicated to the parties.
26. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
March 05 , 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1130 of 2007. 9