State Consumer Disputes Redressal Commission
Chief Medial Officer vs Smt. Sashi & Another on 23 July, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 315 / 2010
Smt. Shashi W/o Sh. Sanjay Kumar
R/o Village Mundlana, Pargana Mangalore
Tehsil Roorkee, District Haridwar
...... Appellant / Complainant
Versus
1. Dr. Asha Sharma, Surgeon
Ladies Doctor, Community Health Centre
Narsan, District Haridwar
Presently posted at District Women Hospital
Haridwar
2. Superintendent, Community Health Centre
Gurukul Narsan, District Haridwar
3. Chief Medical Officer
Haridwar
...... Respondents / Opposite Parties
Sh. B.K. Tyagi, Advocate, holding brief of Sh. S.K. Gupta, Learned
Counsel for the Appellant
None for Respondent No. 1
Sh. Ashok Dimri, A.D.G.C. (Civil), Dehradun, Learned Counsel for
Respondent Nos. 2 and 3
AND
FIRST APPEAL NO. 374 / 2010
1. Chief Medical Officer
Haridwar
2. Superintendent, Community Health Centre
Gurukul Narsan, Haridwar
...... Appellants / Opposite Party Nos. 3 and 2
Versus
1. Smt. Shashi W/o Sh. Sanjay Kumar
R/o Village Mundlana, Pargana Mangalore
Tehsil Roorkee, District Haridwar
...... Respondent No. 1 / Complainant
2. Dr. Asha Sharma, Surgeon
Ladies Doctor, Community Health Centre
Narsan, District Haridwar
Presently posted at District Women Hospital
Haridwar
...... Respondent No. 2 / Opposite Party No. 1
Sh. Ashok Dimri, A.D.G.C. (Civil), Dehradun, Learned Counsel for the
Appellants
Sh. B.K. Tyagi, Advocate, holding brief of Sh. S.K. Gupta, Learned
Counsel for Respondent No. 1
None for Respondent No. 2
2
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mrs. Veena Sharma, Member
Dated: 23/07/2018
ORDER
(Per: Justice B.S. Verma, President):
These two appeals, one by the complainant - Smt. Shashi and another by Chief Medical Officer, Haridwar & Superintendent, Community Health Centre, Gurukul Narsan, Haridwar, under Section 15 of the Consumer Protection Act, 1986 are directed against the order dated 31.08.2010 passed by the District Forum, Haridwar in consumer complaint No. 63 of 2009.
2. Briefly stated the facts giving rise to the appeal are that on 18.10.2005, the complainant had undergone family planning (sterilization) operation at Community Health Centre, Gurukul Narsan, Haridwar by opposite party No. 1 - Dr. Asha Sharma. The complainant had undergone the said operation with an intent to keep her family short and to provide better education to her children. The complainant belongs to backward caste and the husband of the complainant is well educated and belongs to a reputed family. The complainant was assured that the operation has been successful and there would be no difficulty. The opposite party No. 1 works under the control and supervision of opposite party Nos. 2 and 3 - Superintendent, Community Health Centre, Gurukul Narsan, Haridwar and Chief Medical Officer, Haridwar. After the operation, the complainant was also issued with a certificate with regard thereto. The complainant adhered to all the precautions told to her. However, later on, the complainant missed her menstrual cycle and she was suffering pain in her body, whereupon she visited Santosh Nursing 3 Home, Roorkee on 26.06.2008 and consulted Dr. Heena Khare, who prescribed certain medicines and also advised for ultrasound test. Thereafter, the complainant got her ultrasound done at Parakh Diagnostic Centre, Roorkee and the report showed that the complainant was pregnant and was having 9 weeks' pregnancy. The complainant did not want any child and wanted to terminate the pregnancy and abort the child, for which the doctor refused. On 22.01.2009 at 8:37 p.m., the complainant gave birth to a female baby at Sewa Medicare, Muzaffarnagar. The complainant has been burdened with the care and study of unwanted child on account of negligence on the part of the treating doctor. Thus, alleging medical negligence, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The opposite party No. 1 - Dr. Asha Sharma filed written statement before the District Forum and pleaded that the complainant does not fall under the category of "consumer"; that no consideration was paid by the complainant to opposite party No. 1 for the operation; that there is no 100% success guarantee in such operations; that there is 10% possibility of getting conceived even after sterilization operation and that there was no negligence or deficiency in service on her part.
4. The opposite party Nos. 2 and 3 - Superintendent, Community Health Centre, Gurukul Narsan, Haridwar and Chief Medical Officer, Haridwar filed written statement before the District Forum and pleaded that no amount was charged from the complainant for sterilization operation and, as such, she does not fall under the definition of "consumer"; that the complainant was paid Rs. 100/- as incentive for undergoing the said operation; that the complainant did not get herself examined from any specialist; that the complainant was 4 specifically told that sometimes the sterilization operation may fail; that failure of sterilization operation can not be termed as negligence on the part of the treating doctor and that there was no deficiency in service on their part.
5. The District Forum, after perusal of the record, allowed the consumer complaint vide impugned order dated 31.08.2010 and directed the opposite parties to pay compensation of Rs. 25,000/- to the complainant within a period of one month from the date of the order. Not satisfied with the compensation awarded by the District Forum per impugned order, the complainant has filed First Appeal No. 315 of 2010, thereby seeking enhancement of compensation and whereas being aggrieved by the impugned order, Chief Medical Officer, Haridwar & Superintendent, Community Health Centre, Gurukul Narsan, Haridwar have filed First Appeal No. 374 of 2010, thereby assailing the legality and propriety of the impugned order passed by the District Forum. Since both the appeals arise out of the same impugned order, therefore, these are being decided together by this common order.
6. None appeared on behalf of Dr. Asha Sharma inspite of sufficient service through acknowledgement due. We have heard Sh. B.K. Tyagi, Advocate, holding brief of Sh. S.K. Gupta, Advocate appearing on behalf of Smt. Shashi as well as Sh. Ashok Dimri, A.D.G.C. (Civil), Dehradun appearing on behalf of Chief Medical Officer, Haridwar & Superintendent, Community Health Centre, Gurukul Narsan, Haridwar. We have also perused the record available before us.
7. It is well settled that the methods of sterilization / tubectomy are not 100% safe and secure. The Hon'ble Apex Court in the case of 5 State of Punjab Vs. Shiv Ram and others; IV (2005) CPJ 14 (SC), has held that unless it is proved by the cogent evidence on record that the operating doctor was negligent in the performance of the job assigned to him / her, no case of medical negligence can be sustained merely on the ground of failure of sterilization operation. It was further held that merely because woman having undergone sterilization operation became pregnant and delivered child, operating surgeon or his employer can not be held liable for compensation on account of unwanted pregnancy or child. It is worth to mention here that no medical expert evidence has been produced on record to show that the sterilization operation of the complainant was not carried out as per the prescribed method. The District Forum has nowhere in its impugned judgment recorded any finding on the point of medical negligence on the part of the operating doctor and in the absence of such a finding, the District Forum was not at all justified in allowing the consumer complaint.
8. The Hon'ble National Commission in the case of Kamla Kesharwani Vs. Superintendent, Shyamshah Medical College and Gandhi Memorial Hospital and others; III (2009) CPJ 17 (NC), has held that there is no guarantee that after tubectomy operation, the child birth will not take place. It was also held that the failure of tubectomy operation has been explained in medical texts. It was also held that, "the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. Inspite 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. Section 3(2) Explanation II provides that if the woman has suffered an unwanted pregnancy, it can be 6 terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971".
9. This Commission in its decision dated 17.08.2010 rendered in First Appeal No. 291 of 2007; Dr. S.K. Gupta and others Vs. Sh. Rajbir Singh, under the similar circumstances, has held that the case of medical negligence against the operating surgeon is not made out and the complainant was not held entitled to any relief and the order passed by the District Forum, allowing the consumer complaint, was set aside.
10. We may also advantageously refer to a decision dated 03.12.2008 of the Hon'ble National Commission given in the case of The Chief Executive Officer and others Vs. Sagunabai Navalsing Chavan; 2011 (1) CCC 286 (NS). The facts of the reported case were that the complainant underwent tubectomy operation and even after the tubectomy operation, she became pregnant and delivered a female child. The District Forum awarded compensation of Rs. 500/- per month towards the expenses of the child upto the age of 18 years and directed the opposite party Nos. 1 to 4 to pay jointly and severally sum of Rs. 1,15,000/- as compensation along with cost of Rs. 5,000/- to the complainant. The Hon'ble National Commission held that the tubectomy operation was performed free of cost and the complainant got incentive from the government for undergoing operation. It was also held that once the complainant has conceived, she could have approached same hospital for undergoing MTP, which she has not done. As per the Medical Literature, there are chances of failure of sterilization and recanalisation could take place due to natural causes. The order of the Foras below was set aside and the complaint was dismissed. In the instant case also, the sterilization / tubectomy 7 operation of the complainant was done at the government hospital free of cost.
11. Learned counsel for the complainant - Smt. Shashi cited a decision of the Hon'ble Apex Court given in the case of State of Haryana and others Vs. Smt. Santra; I (2000) CPJ 53 (SC). In the said case, the documents placed on the file as well as testimony of PWs proved that the medical officer who conducted the operation has threw the care and caution to the winds and focused attention to perform as many as operations as possible to build record and earn publicity. It is in such settling that a poor lady obsessed to plan her family, was negligently operated upon and treated and left in the larch to suffer agony and burden, which was made to believe was avoidable. In the said case, Smt. Santra already had seven children. In such circumstances, compensation was awarded. In the instant case, there is no evidence to prove that the operating doctor had committed medical negligence in the sterilization operation of the complainant. It may not be out of place to mention here that the complainant had undergone sterilization operation on 18.10.2015 and she gave birth to a female baby on 22.01.2009, i.e., after a period of more than three years' from the date of operation. Even otherwise, the decision cited on behalf of the complainant does not hold good in view of the latest law on the subject, as discussed above. This apart, the decision given in the case of State of Haryana and others (supra) is two Judges' Bench decision, whereas the decision given in the case of State of Punjab (supra) is a three Judges' Bench decision headed by the then Hon'ble Chief Justice of India and in the case of State of Punjab (supra), the Hon'ble Apex Court has discussed its earlier decision given in the case of State of Haryana and others (supra) and it was held that in the case of State of Haryana and others (supra), the lady had offered herself for complete sterilization and not 8 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. In was in such circumstances that a case of medical negligence was found and a decree for compensation in tort was held justified. Thus, the said case proceeded on its own facts. The facts of each and every case are different and every case has to be decided on its own merit.
12. The District Forum has not properly considered the law on the subject and has erred in allowing the consumer complaint per impugned order, which suffers from vice of infirmity and can not legally be maintainable and is liable to be set aside. Consequently, the appeal filed by Chief Medical Officer, Haridwar & Superintendent, Community Health Centre, Gurukul Narsan, Haridwar bearing First Appeal No. 374 of 2010 deserves to be allowed. Since we have come to the conclusion that the District Forum was not justified in allowing the consumer complaint and the complainant was not entitled to any compensation and we are allowing the appeal filed by Chief Medical Officer, Haridwar & Superintendent, Community Health Centre, Gurukul Narsan, Haridwar, thereby setting aside the impugned order passed by the District Forum, therefore, there does not arise any question for enhancement of compensation and the appeal filed by the complainant for enhancement bearing First Appeal No. 315 of 2010 is liable to be dismissed.
13. First Appeal No. 374 of 2010 filed by Chief Medical Officer, Haridwar & Superintendent, Community Health Centre, Gurukul Narsan, Haridwar is allowed. Order impugned dated 31.08.2010 passed by the District Forum is set aside and consumer complaint No. 63 of 2009 is dismissed. The statutory amount of Rs. 12,500/-
9deposited by the appellants at the time of filing First Appeal No. 374 of 2010, be released in their favour. First Appeal No. 315 of 2010 filed by the complainant - Smt. Shashi for enhancement is dismissed. No order as to costs.
14. Let the copy of the order be kept on the record of First Appeal No. 374 of 2010.
(MRS. VEENA SHARMA) (JUSTICE B.S. VERMA) K