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(Per: Justice D.S. Tripathi, President):

This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 23.04.2019 passed by the District Consumer Disputes Redressal Commission, Haridwar (in short "The District Commission") in consumer complaint No. 201 of 2015; Smt. Rajkumari and another Vs. Chief Medical Officer, Roshnabad, Haridwar, by which the consumer complaint was allowed and the appellant - opposite party was directed to pay sum of Rs. 6,00,000/- to the respondents - complainant for upbringing; education, marriage etc. of the female child given birth by respondent No. 1 - complainant No. 1 after her sterilization operation together with Rs. 10,000/- towards litigation expenses and counsel fee, within a period of one month from the date of impugned judgment and order, failing which the respondents - complainants were also held entitled to interest @6% p.a. on the above amount rom the date of institution of the consumer complaint till final payment.

2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, the complainant No. 1 - Smt. Rajkumari was got married to complainant No. 2 - Sh. Brijesh Kumar. The complainants were having three children, which were given birth out of the wedlock between the complainants. The complainant No. 2 is less educated and being a labourer and having low income, is able to maintain his family with a great difficulty. With an intent to provide good education to their children, the complainants decided to plan their family. The complainant No. 1 visited Shri J.S.N.M. Government Hospital, Roorkee, where the doctors told her that sterilization (family planning) is the best method to limit the family and also told that after sterilization operation, she would not conceive and give birth to another child. The complainant No. 1 underwent sterilization operation on 21.05.2009, regarding which certificate was also issued. Inspite of the above operation, the complainant No. 1 conceived, causing her mental agony. After about two years', gave birth to a female child. There was negligence on the part of the operating doctor in conducting sterilization operation of complainant No. 1. By birth of the child, unwanted liability has accrued to the complainants, for which the appellant - opposite party is solely responsible. Inspite of demand of compensation through legal notice, no heed was paid. Therefore, the consumer complaint was filed by the complainants before the District Commission.

3. The appellant did not file any written statement before the District Commission. Vide order dated 07.12.2015, the opportunity to file written statement by the appellant was closed and the consumer complaint was proceeded ex-parte against the appellant. However, evidence was filed by the appellant by way of affidavit of Dr. Premlal, Chief Medical Officer, Haridwar, stating therein that before the sterilization operation, the complainant No. 1 was duly informed that sometimes, the operation may fail, regarding which the complainant No. 1 submitted her consent and also received incentive. As per Jeffcoate Obstetrics Guidelines, there are 0.3% chances of failure of sterilization operation. The complainant No. 1 does not fall under the category of "consumer". No fee was charged from the complainants for the operation. The complainant No. 1 underwent family planning operation with her own sweet will and the complainants are not entitled to any compensation.

4. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 23.04.2019, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant has preferred the instant appeal.

5. We have heard rival arguments advanced by learned counsel for the parties and perused the record.

6. It is well settled that the methods of sterilization / tubectomy are not 100% safe and secure. Hon'ble Apex Court in the case of State of Punjab Vs. Shiv Ram and others reported in IV (2005) CPJ 14 (SC) cited by learned counsel for the appellant, has held that unless it is proved by 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 complainant No. 1 was not carried out as per the prescribed method.