State Consumer Disputes Redressal Commission
Shanti Devi vs Dr.T.C.Saha on 8 September, 2008
JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI First Appeal no.721 of 2007 Against judgment dated 11.9.2007, passed by District Consumer Disputes Redressal Forum, Dhanbad, in Consumer Complaint no.177 of 2006. Shanti Devi - Appellant Vrs. Dr.T.C.Saha - Respondent For Appellant : Mr.Ravi Prakash, Advocate For Respondent : Mr.Bhagirath Prasad, Advocate. Before: Justice Gurusharan Sharma- President Mrs. Kalyani Kar Roy- Member
And Mr. Satyendra Kumar Gupta-Member Judgment Justice Sharma: The complainant is appellant. Her complaint (Consumer Complaint no.177 of 2006), filed under the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) before Dhanbad District Consumer Disputes Redressal Forum against Dr.T.C.Saha has been dismissed by the impugned judgment dated 11.9.2007. Hence, she has preferred the present appeal.
2. The appeal has been filed on 23.10.2007, whereas from the date of impugned judgment, limitation had already expired on 11.10.2007. On the last page of the true copy of impugned judgment, is stood mentioned that copy was prepared and issued on 14.9.2007. Hence, there is a delay of nine days from the date, when true copy was issued by the District Forum. In the petition filed under Rule 8(4) of the State Rules, the appellant claimed that true copy was received by her on 19.9.2007. It is true that State Commission was closed for Durga Puja from 17.10.2007 to 21.10.2007 and it reopened on 22.10.2007, whereas the appeal was filed one day thereafter. The respondent has not filed any rejoinder to the said petition. We are satisfied with the explanation furnished for delay in filing the appeal. Hence, delay is condoned.
3. On 14.5.2000 the complainant had undergone Laparoscopic Sterilization (family planning operation) by Dr.T.C.Saha at Tara Nursing Home, Saraidhela, Dhanbad. It was alleged that the said surgery was done negligently and the complainant-appellant became pregnant. She, therefore, filed complaint on 11.5.2006, under the Act, against the said doctor claiming compensation of Rs.5,40,000.00, treatment expenses of Rs.21,600.00 and litigation cost of Rs.5,000.00 to be paid to her.
4. The opposite party-respondent contested the complaint. According to him the complaint was barred by time and he had never given 100% guarantee/result of Laparoscopic Sterilization operation. No method of tubal sterilization was without failure. Pregnancy after sterilization may occur without any technical errors. The risk of failure of such operation is inherent in the procedure. The complainant became pregnant after five years of sterilization. It cant be said that the doctor was guilty of negligence merely because the procedure failed. After conceiving subsequent to sterilization operation after five years, the complainant consulted him on 1.10.2005 and agreed for termination and Minilap Sterilization, but subsequently that was postponed on her wish. Hence, the allegation that the doctor refused termination and minilap sterilization was not correct. As per medical literature/Sciences there was a chance of Sterile being turned into fertile even after the operation was done with due care and caution. On 17.4.2006, the complainant gave birth to a male child.
5. The District Forum, on the basis of materials on record, found that there was no negligence on the part of the doctor in performing Tubectomy operation of the complainant. It seemed that due to biological change in body subsequently complainant conceived and became pregnant. The complaint was filed after 6 years of the said operation (14.5.2000) complaining negligence of the doctor, hence, it was barred by time and no application for condonation of the said delay was filed under Section 24 A of the Act. Accordingly, the complaint was dismissed.
6. We have heard both the parties at length and have perused the materials on record. We have also gone through the relevant principles of Medical Science in this regard produced before us. We find that one of the most commonly used method of Sterilization is Laparoscopic sterilization. This method involves passing of ring or band over the fallopian tubes.
According to Dr.D.C.Duttas Text Book of obstetrics, 6th Edition 2004 edited by Dr.Hiralal Konar failure rate of Lapariscopic sterilization was 2% to 6 %. The book Integrated Obstetrics and Gynaecology for Post Graduates, edited by Dr.C.J.Dewhurst writes that follow up is often difficult in respect of pregnancy following female sterilization procedure because of the small numbers, who can be contacted and because failure may become evident only after many years. Abdominal pregnancy has been reported even after hysterectomy, when the appendages were conserved and all tubal operations have a failure rate.
7. In our view, the subsequent conceivement might have taken place due to spontaneous recanalisation during the gap period of five long years. The biological changes in her body were not within the control of any one and greater fecundity on account of her age. In order to disprove this fact the complainant has not produced any expert evidence to show that there would not have been any conceivement in the event if a person undergoes tubectomy operation by Laparoscopic Sterilization method.
8. Several textbooks on medical negligence have recognised the percentage of failure of the sterilization operation due to natural causes to be varying between 3% and 7 % depending on the techniques or method chosen for performing the surgery, out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons de hors and negligence of the surgeon and he cannot be held liable to pay compensation.
Otherwise also the methods of sterilization so far as 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 that without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes.
9. No technique however authentic universally accepted can be said to be full proof method in terms of Medical Jurisprudence. The case of complainant may be an exception. Except the sweeping allegation made by the complainant no positive evidence, much less expert evidence has been brought on record in support thereof.
10. The Counsel for the complainant-appellant emphatically relied upon a decision of the apex Court in State of Haryana and others Vs. Smt. Santra (AIR 2000 S.C. 1888). The said decision arose out of the Civil Suit filed by the victim, wherein both oral and documentary evidences have been laid. The court on consideration of the evidence on record, concluded that there has been a gross negligence on the part of the attending physician and accordingly decreed the suit. In the case in hand, as stated above, there is no such evidence on record except the allegation as aforesaid and as such, in our view, the said decision in no way helps the complainant-appellant. Ratio of the said decision is also not applicable in the present case. In State of Punjab Vs. Shiv Ram and others (Vol. IV (2005) CPJ 14 S.C.) on consideration of the decision in State of Haryana and others Vs. Santra (supra) it was held that the said case was certainly distinguishable and could not be said to have laid down any law of universal application.
11. In the aforesaid circumstance, we find no reason to interfere with the impugned judgment in this appeal. There is not merit in the appeal. It is dismissed accordingly, but without any cost.
The September, 2008.
Ranchi.
Member Member President