National Consumer Disputes Redressal
Lakshmi vs Director Of Medical Services, Family ... on 15 January, 2008
Equivalent citations: I(2008)CPJ460(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. In this case the petitioner has not turned up and she has sent her written arguments. We have gone through the impugned orders, written arguments and the material available on record.
2. Briefly stated the grievance of the petitioner/complainant is that in order to avoid pregnancy in future she had undergone a tubectomy operation conducted by Dr. Mahesh of K.C. General Hospital, Bangalore on 19.5.2004. But on account of negligence on part of the doctor in conducting the tubectomy operation the complainant conceived and gave birth to the 3rd child and, thus, suffered hardship.
3. It is contended through written arguments that the State Commission has not appreciated the hard fact of birth of third unwanted child and has misconstrued the fact as biological changes in the body of complainant instead of appreciating the negligence of the doctor who performed the tubectomy operation.
4. Complainant has also referred in her written arguments the judgment delivered in the case of Smt. Sukanti Behera v. Dr. Sashi Bhusan Rath and Anr. II (1993) CPJ 633, in support of the argument that even the Government Hospital are not immune from the provisions of the Consumer Protection Act, 1986. We sent for the said judgment and have found that the reference relates to the judgment of the Orissa State Consumer Disputes Redressal Commission, Cuttack and not to the judgment of the Supreme Court.
5. A similar matter came up for hearing before the Supreme Court in the case of State of Punjab v. Shiv Ram and Ors. III (2005) ACC 717 (SC) : IV (2005) CPJ 14 (SC) : 2006 CCC 1 NS. After referring to the judgments passed in the cases of Jacob Mathew v. State of Punjab and Anr. , had considered a number of text books on Gynaecology namely Jeffcoate's Principles of Gynaecology, Shaw's Textbook of Gynaecology, The Essentials of Contraceptive Technology, Newsletter "alert" September, 2000 issue. The New England Journal of Medicine (Vol. 336: 762-707) (March 13, 1997, November 11), Medico-legal aspects in Obstetrics and Gynaecology, as well as English decisions, Eyre v. Measday (1986) 1 ALL ER 488; Thake v. Morris (1986) 1 ALL ER 497 (CA) and the judgments in State of Haryana and Ors. v. Smt. Santra I (2000) CPJ 53 (SC) : 1986-2002 Consumer 6087 (NS), the Supreme Court observed as under:
27. The methods of sterilization so far 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 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. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 a registered medical practitioner, notwithstading anything containing in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to Sub-section (2) of Section 3 provides-
Explanation IIWhere any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
28. And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.
29. 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.
(Emphasis supplied)
6. It may be mentioned that If the facts of the present case are seen In above conspectus of law, It Is apparent that In absence of any evidence indicating deficiency on the part of the doctor in performing the tubectomy operation/the fact that the complainant/petitioner conceived and gave birth to a child, by itself would not be sufficient to attract the-principle of res ipsa loquitur to give a finding of deficiency in rendering medical service.
7. Consequently, the doctor could not be held liable. It may also be mentioned here that the petitioner/complainant did not approach any hospital for termination of the unwanted pregnancy after tubectomy operation. Failure due to natural causes would not provide any ground for claiming any compensation. Complainant should expect only that the concerned doctor would exercise proper skill in surgery expected of a professional in his particular specialty. The complainant could not expect that the respondent should give 100% guarantee of success of the operation. The doctor cannot be expected to be "a paragon combining the Qualities of polymath and prophet."
8. In view of the aforesaid circumstances, the respondent, Director of Medical Services Family Planning and Welfare Deptt. should consider the case of the complainant from the point of view of ex gratia payment in the light of the observations made by the Apex Court in the case of Javed and Ors. v. State of Haryana and Ors. and in the case of State of Punjab v. Shiv Ram (supra). In State of Punjab v. Shiv Ram, the Supreme Court observed as under:
The fact cannot be lost sight of that while educated persons in the society belonging to the middle class and the upper class do voluntarily opt for family planning and are careful enough to take precautions or remedial steps to guard against the consequences of failure of sterilization, the illiterate and the ignorant and those belonging to the lower economic strata of society face the real problem, To popularize family planning programmes in such section of society, the State Government should solace to them if they, on account of their illiteracy, ignorance or carelessness, are unable to avoid the consequences of a failed sterilization operation.
With the above observations, the revision petition is dismissed.