APPEAL NO.2074 OF 2002



Civil Surgeon, General Hospital, Kaithal.

Director Public Health Department, Haryana at Chandigarh.

….…Appellants.

Versus



Smt.Rekha wife of Sh.Ram Pal, resident of Village Jamba, Tehsil and District Kaithal.

…. Respondent



BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

MRS. NEENA SANDHU, MEMBER.



Present: None.



MRS. NEENA SANDHU, MEMBER

1. This is an appeal filed by the OP, received on transfer from Haryana State Consumer Disputes Redressal Commission, against the order dated 31.7.2002 passed by District Consumer Disputes Redressal Forum, Kaithal (for short hereinafter to be referred as District Forum) passed in complaint case No.36/1999.

2. The brief facts of the case are that the complainant Smt.Rekha Rani got herself operated for sterilization in a camp at Primary Health Centre, Pundri on 13.11.1995 and the tubectomy operation was conducted by the team of doctors of General Hospital, Kaithal but the said operation was unsuccessful with the result that the complainant became pregnant and gave birth to a male child on 27.4.1998. For this reason, the complainant filed this complaint and alleged that she has suffered a lot of mental, physical and financial burden due to the birth of unwanted child.

3. During the pendency of the case, at the District Forum level the complainant filed an application for impleading Dr.K.B.Jain, M.O. Kaithal as a necessary party. The request was allowed and Dr.K.B.Jain was impleaded as OP No.3. Registered notice was issued to Dr.K.B.Jain on 24.1.2001 at his present known address, but neither registered cover was received back nor anybody appeared on behalf of Dr.K.B.Jain. Hence, OP No.3 i.e. Dr.K.B.Jain was proceeded against exparte on 27.2.2001.

4. In the reply filed by OPs No.1 and 2, the preliminary objection taken was that the District Forum has no jurisdiction to entertain and try the present complaint because the complainant is not a consumer of the OPs, rather the OPs have paid an amount of Rs.145/- to the complainant as compensation for diet charges and transportation. The OPs No.1 and 2 admitted that the complainant got sterilized operated in P.H.O. Pundri on 13.11.1995 but the complainant gave a consent on the application form before conducting the operation by stating that in case if failure of the family planning operation, the hospital authority and the operating surgeon will not be held responsible in any manner. Hence prayed for dismissal of the complaint with special costs.

5. The complainant led evidence in support of his contentions whereas no evidence was led by OPs.

6. The District Forum allowed the complaint and name of OP No.3 Dr.K.B.Jain was deleted from the array of OPs with the reasoning that the OP No.3 was not a member of the operating team. Moreover it is ever never mentioned in the pleading of OPs No.1 and 2 that Dr.K.B.Jain was the member of operating team on 13.11.1995. Both the parties did not produce any evidence regarding the fact that Dr.K.B.Jain was member of the team, who conducted the sterilization operation of the complainant. The name of Dr.K.B.Jain was deleted from the list of OPs and the District Forum held OPs No.1 and 2 liable jointly and severally to pay Rs.50,000/- as compensation along with interest @ 12% from the date of filing of complaint till realization of amount, awarded as compensation for harassment and mental agony including the costs.

7. Aggrieved by the impugned order of the District Forum, the OPs No.1 and 2 have filed the present appeal and admitted that the complainant was operated for sterilization in the Primary Health Centre, Pundri on 13.11.1995. The operation was conducted by a team of doctors. It is further averred that the said operation, as alleged by the complainant, failed due to negligence of the team of the doctors and due to this, the complainant/OP became pregnant and gave birth to a unwanted male child on 27.4.1998. It is further averred that since the complainant had already given her consent by signing the application form before conduct of the operation, that in case of failure of the operation, the hospital authorities and the operating surgeon will not be held responsible in any manner. Therefore even if the tubuctomy operation had failed, the complainant is not entitled for any compensation. It is further submitted that the complainant had paid a sum of Rs.145/- to the OP on account of diet charges and transportation charges etc. Hence, there is no deficiency in service on the part of appellant/OPs and prayed that the appeal may kindly be allowed and the impugned order be set aside with a direction as to the costs.

8. Earlier Sh.Prithvi Singh, Superintendent (Civil Surgeon Hospital, Kaithal) was appearing on behalf of appellants and the respondent had already been proceeded against exparte vide order dated 31.10.2008. This case was fixed for arguments today i.e. 3.11.2009. The case has been taken up twice but nobody appeared on behalf of both the parties. We are left with no alternative except to pass an exparte order. The point for consideration before us is whether the complainant is a consumer and is entitled for compensation as awarded by the District Forum under CPA, 1986.

9. From the perusal of the record, admittedly the tubectomy for sterilization was done by the team of doctors of the Government Hospital, Kaithal. It is settled law that the persons who are seeking treatment from the Government Hospitals are consumers within the meaning of Section 2 (1) (d) (ii) and the services rendered by the Government Hospitals are covered under Section 2(1) (O) of the Consumer Protection Act, 1986. As was held by the Hon’ble Apex Court in the case titled as Indian Medical Association Vs. V.P.Shantha and others, (CPJ, 1995(3) page 1 (Supreme Court)). Moreover the Hon’ble Apex Court summed up the law in the case titled as State of Haryana Vs. Smt. Santra 2000 (2) RCR (Civil) 739, Supreme Court (DB), “the state is liable to bear damages on account of failure of sterilization operation undergone in Government Hospital, resulting in birth of an unwanted child by the person sterilized in negligence, which is apparent, requires no proof.” The facts of this case are similar in nature in the present case, due to the negligence of the OPs, the sterilization operation was unsuccessful which is proved beyond doubt. It is also clear that the unwanted child certainly adds to the financial problems of a poor family on account of the negligence of the doctor, hence tentamounts to deficiency in service qua the complainant. We do not find any ambiguity in the order passed by the District Forum, no interference is called for in the matter. The appeal filed by OPs No.1 and 2 is hereby dismissed, as devoid of any merit and the impugned order is upheld being just fair and legal with no order as to costs.

10. Copies of this order be sent to the parties, free of charge.