State Consumer Disputes Redressal Commission
Icici Lombard Gen. Insurance Co. Ltd. vs Smt. Sautan & Others on 12 September, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 54 / 2012
ICICI Lombard General Insurance Company Limited
having its Registered Office at
ICICI Bank Towers, Bandra Kurla Complex
Mumbai - 400051 and having Branch Office at
Municipal No. 447, 3rd Floor, Opposite Hotel Great Value
Rajpur Road, Dehradun
through its Authorised Representative Sh. Vivek Negi
...... Appellant / Opposite Party No. 3
Versus
1. Smt. Sautan W/o Sh. Ram Kumar
R/o Village Kunja Bahadurpur
P.O. Iqbalpur, Tehsil Roorkee
District Haridwar
...... Respondent No. 1 / Complainant
2. Chief Medical Officer
Haridwar, District Haridwar
3. Chief Medical Superintendent
Women Hospital, Haridwar, District Haridwar
...... Respondent Nos. 2 and 3 / Opposite Party Nos. 1 and 2
Sh. Yogesh Sethi, 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
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. Balveer Prasad, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 12/09/2018
ORDER
(Per: Justice B.S. Verma, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 14.02.2012 passed by the District Forum, Haridwar in consumer complaint No. 309 of 2010.2
2. Briefly stated the facts giving rise to the appeal are that the complainant belongs to Scheduled Caste category. The complainant was having five children, i.e., four sons and one daughter. The complainant is a labourer by profession and has no other way / mean to earn livelihood. As per the advice of Dr. (Smt.) Sushma Saini, the complainant agreed to undergo family planning (sterilization) operation at Community Health Centre, Village Kunja Bahadurpur. The sterilization operation of the complainant was conducted by Dr. (Smt.) Sushma Saini at Women Hospital, Haridwar on 28.07.2009 and the complainant was assured that she would not conceive in future. For few months', everything went right, but after few months', the complainant missed her menstrual cycle, whereupon she met Dr. (Smt.) Sushma Saini, who told that the complainant is physically quite weak and in such situation, sometimes the menstrual cycle may be missed. On 07.08.2010, the complainant got her urine test done at Community Health Centre, Bhagwanpur and the urine examination report was positive and it was found that the complainant was pregnant and was having 3½ months' pregnancy. There was negligence on the part of the doctor in performing / conducting the sterilization operation. The complainant sent a legal notice dated 11.08.2010 through her counsel to the opposite parties, but the same went unanswered. Thus, alleging deficiency in service on the part of the doctor, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The appellant - opposite party No. 3 filed written statement before the District Forum and pleaded that as per the Memorandum of Understanding executed between Ministry of Health & Family Welfare, Government of India and ICICI Lombard General Insurance Company Limited, the amount agreed upon has already been paid by 3 the insurance company; that the insurance company is not liable to pay any further amount and there is no deficiency in service or unfair trade practice on their part.
4. The respondent Nos. 2 and 3 - opposite party Nos. 1 and 2 filed separate written statements before the District Forum and pleaded that the complainant had undergone sterilization operation on 28.07.2009; that the operation was conducted free of cost / charge; that the complainant was duly informed that sometimes, the sterilization operation gets fail; that prior to operation, the complainant has submitted the form that in case of failure of operation, she would not hold the doctor liable; that w.e.f. 13.06.2008, there has been Memorandum of Understanding between Ministry of Health & Family Welfare, Government of India and ICICI Lombard General Insurance Company Limited
5. The District Forum, after perusal of the record, allowed the consumer complaint vide impugned order dated 14.02.2012 and directed the appellant - opposite party No. 3 to pay compensation of Rs. 30,000/- to the respondent No. 1 - complainant. It was further held by the District Forum that if as per the Memorandum of Understanding, the amount has been paid by the insurance company to the Government, in that eventuality, the insurance company would be at liberty to recover the amount from the Government. Aggrieved by the impugned order, the appellant - insurance company has preferred this appeal before this Commission.
6. None appeared on behalf of respondent No. 1 - complainant inspite of sufficient service through acknowledgement due. We have heard the learned counsel for the appellant and respondent Nos. 2 and 3 and gone through the record.
47. 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 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 order 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 5 doctor and seek medical advice. Section 3(2) Explanation II provides that 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".
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 6 operation of the complainant was done at the government hospital free of cost.
11. It would not be out of place to mention here that the appellant - insurance company has specifically pleaded that the maximum liability of the insurance company as per the Memorandum of Understanding dated 31.12.2007 executed between Ministry of Health & Family Welfare, Government of India and ICICI Lombard General Insurance Company Limited, has already exhausted, as the insurance company has already discharged all the complaints by paying the maximum amount payable under the policy to the State Government for that particular annual term. However, since there was no cogent and reliable evidence on record to prove medical negligence on the part of the treating surgeon in conducting the sterilization operation, the District Forum was not at all justified in allowing the consumer complaint.
12. The District Forum has not properly considered the facts and circumstances of the case and has wrongly allowed the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside. Consequently, the appeal deserves to be allowed.
13. Appeal is allowed. Order impugned dated 14.02.2012 passed by the District Forum is set aside and consumer complaint No. 309 of 2010 is dismissed. The statutory amount of Rs. 15,000/- deposited by the appellant at the time of filing the appeal, be released in its favour. No order as to costs.
(MRS. VEENA SHARMA) (BALVEER PRASAD) (JUSTICE B.S. VERMA) K