State Consumer Disputes Redressal Commission
Uma Devi, Doctor,G.H.Tenkasi & 2 Ors vs Nathaduparisal Beevi,Tirunelveli Dt. on 28 January, 2015
IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.A.K.. ANNAMALAI, M.A. M.L., M.Phil., Presiding Judicial Member
Thiru.S. SAMBANDAM, B.Sc., Member
F.A.No.32/2012
(F.A.No.422/2010 on the file of State Consumer Disputes Redressal
Commission, Chennai.)
(Against the order in C.C.No.115/2007, dated 07.04.2010 on the file of DCDRF,
Tirunelveli)
WEDNESDAY, THE 28th DAY OF JANUARY 2015.
1. Dr. Uma Devi, M.B.B.S.,D.G.O.,
Doctor, Government Hospital,
Tenkasi.
2. Dr. Mallika, M.B.B.S., D.G.O.,
Doctor, Government Hospital,
Kadayanallur.
3. The Deputy Director of Medical &
Rural Health Services and Family Welfare,
Tirunelveli. Appellants/Opposite Parties 1 to 3
Vs
Nathaduparisal Beevi @ Nathadu Parisal @ Parisal,
W/o. Syed Sulaiman,
No. 29, A/4, West Malampattai,
Krishnapuram, Kadayanallur,
Tirunelveli District. Respondent/complainant
For Appellants/Opposite parties : Mr. A. Tamilsevam, Advocate.
For Respondent/Complainant : Served. Absent.
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This appeal coming before us for final hearing on 15.10.2014 and upon
perusing the material records, this Commission made the following:
ORDER
Thiru. A.K. ANNAMALAI, PRESIDING JUDICIAL MEMBER.
1. The opposite parties are the appellants.
2. The complainant having undergone sterilization surgery done by the 1 st opposite party in the Government Hospital, Tenkasi on 01.10.1999 and after delivery of male child was discharged on 08.10.1999 and subsequently she became pregnant and approached the 2nd opposite party on 12.11.2007 for terminating the pregnancy which was refused on the ground that her health condition was weak and if abortion was done which would case danger to her life and thereafter she delivered a male child on 21.07.2010 at some other hospital and thereafter the complaint came to be filed alleging negligence against the opposite parties claiming for payment of Rs.3,50,000/- as compensation for mental agony and deficiency in service in performing the surgery and Rs.1,00,000/- as compensation and for costs.
3. Since the 1st opposite party's present address was not known, notice was effected by publication and was set exparte.
4. The 2nd and 3rd opposite parties denied the allegations before the District Forum in their written version contending that there was no negligence on their part and being the service done at free of cost in the Government Hospital and as per medical standard there may be possibilities of failure of sterilization 3 among the patients about 1.8 per 100 woman about 1 in every 55 woman and the doctor who done the subsequent delivery in the Fathima Nursing Home is necessary party to the complaint and thereby the complaint is bad for non- joinder of necessary party since the 1st opposite party had not performed the operation, the complaint is also bad for mis-joinder of party and thereby the complaint to be dismissed.
5. The District Forum on the basis of both sides materials and after an enquiry allowed the complaint and directed the opposite parties to pay a sum of Rs.3,50,000/- to the complainant to maintain the child and also to pay Rs.50,000/- as compensation for mental agony with costs.
6. Aggrieved by the impugned order, the opposite parties 1 to 3 have come with this appeal contending that the District Forum erroneously allowed the complaint without taking into consideration of the materials relied on by the opposite parties and the complainant has not followed the written advice given by the appellant and has not taken post-operative care by taking treatment and did not come to the hospital after discharge as per the advice made by the doctors.
7. Both sides have filed their written arguments and we have considered both sides materials and carefully gone through the written submission and other materials in this regard. It is the admitted case of both sides that the complainant undergone sterilization operation with the 2nd opposite party after delivery of child on 29.09.2009 and subsequently she conceived and became 4 pregnant and for that she had approached the 2nd opposite party on 12.11.2007 and subsequently she delivered male child on 21.07.2007 at Fathima Nursing Home, Kadayanallur, she delivered child in spite of sterilization already undergone and thereby alleged deficiency in service on their part and it has to be noted that the complainant had undergone sterilization surgery on 01.10.1999 after nearly 8 years she became pregnant and delivered a male child on 21.07.2007 and during the period from 29.09.1999 to 21.07.2007 nearly for 8 years there was no complaint against the opposite parties relating to the surgery performed or any deficiency in service in performing the surgery was alleged except to state that she got pregnancy and delivered a child on 21.07.2007.
8. The opposite parties contended that the sterilization surgeries are not 100% success and the Hon'ble Supreme Court observed that no female sterilization should be considered as permanent. Failure rates are probably higher than previously thought however. A major new US study found that the risk of pregnancy within 10 years after sterilizations about 1.8 per 100 women about 1 in every 55 women. The risk of sterilization failure is greater for younger women because they are more fertile than older women. Also, some methods of blocking the tubes work better than others. The complainant failed to prove that she has followed the medical advice after sterilization and also approached the 2nd opposite party as soon as she became pregnant immediately during the year 2007 in order to carry out the operation. It is stated that the 2nd opposite party refused to do the operation stating that the patient is weak and the operation 5 could not be done without the risk to the life of the patient and this may be true in the medical field regarding the sterilization surgery are concerned all over the world, nowhere it is assured 100% success in the surgery and thereby various reasons for becoming pregnant subsequently even after sterilization due to natural re-escalation of fallopian tubes and physical changes in the body of the woman due to various harmonious and other reasons, unless there was surgery done with defective, without taking due care hence the complainant not alleged any deficiency in the performance of the surgery except to state that she became pregnant in spite of sterilization done that too have after several years without having any complications in the surgery, the opposite parties cannot be held liable for the pregnancy of the complainant in this regard. The opposite parties also contended that they have informed the consequences of the surgery and obtained consent in which it was clearly explained the possibilities of failure in the process and the surgery was performed and further in case of such failure the Government has formulated a scheme by way of certain compensation in case of failure in sterilization surgery for the life persons, compensation of Rs.5000/- and in the case of death of the patient a sum of Rs.20,000/- and as per the letter under Exhibit A6, it is also mentioned that in all, the Government can award compensation of Rs.5000/- in this regard. We are of the view that the District Forum erroneously allowed the complaint by carrying over sympathy towards the complainant having number of children which is liable to be set aside by allowing the appeal.
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9. In the result, the appeal is allowed by setting aside the order of the District Forum, Tirunelveli passed in C.C.No.115/2007 dated 07.04.2010 and the complaint is dismissed.
The Registry is directed to refund the mandatory Fixed Deposit with accrued interest duly discharged in favour of the appellants/opposite parties 1 to 3.
Sd/-xxxxxx Sd/-xxxxxx
S. SAMBANDAM, A.K. ANNAMALAI,
MEMBER. PRESIDING JUDICIAL MEMBER.
INDEX: YES / NO
TCM/Mdu Bench/Orders- 2015/Jan