Appeal case No.2916/2002/Hry/RBT/1227/2008
Santosh wife of Mange Ram resident of village Dhanchari, District Hisar.

…Appellant
Versus
Dr.Hemant kansal, the then Medical Officer, General Hospital, Hansi now working as medical Officer, General Hospital, Hisar.


...Respondent

Appeal U/s 15 of Consumer Protection Act,1986 against

order dated 9.10.2001 passed by Consumer Disputes

Redressal Forum- Hisar



Present: Sh.Naridner Singh Hooda,advocate for the appellant

Sh.Hemen Aggarwal,advocate for respondent

Sh.Joginder Singh,AAG alognwith

Sh.Umed Singh, Clerk for General Hospital, Hansi



BEFORE : Hon’ble Mr.Justice Pritam Pal, President

Maj.Gen.S.P.Kapoor (Retd.),Member

Mrs.Neena Sandhu,Member

JUDGMENT

3.12.2009

Justice Pritam Pal, President

1. This appeal by complainant – Santosh is directed against the order dated 9.10.2001 passed by District Consumer Forum-Hisar whereby complaint case No.560/2001 filed by her was dismissed.

The parties in this judgment hereinafter shall be referred to as per their ranking before the District Consumer Forum.

2. Briefly the facts as set out in the complaint are that the complainant who is a household lady went under tubectomy operation on 16.6.98 conducted by OP vide serial No.67/223. She obeyed all the instructions after the operation as given to her by OP but due to his sheer negligence in conducting the operation, she gave birth to a female child on 7.9.2000. The complainant filed complaint before the District Forum seeking compensation of Rs.3 lacs as she had no source of income to maintain the female child which had born after the tubectomy.

3. On the other hand, the case of Opposite party before the District Forum was that complainant was not consumer as she did not pay any consideration to OP for the sterilization operation which was done free of cost by the Health Department, Govt. of Haryana ; rather she was paid incentive for undergoing sterilization operation under the National Family Welfare Programme. It was further pleaded that the sterilization operation of the complainant could not be completed since her left tube could not be ligated due to adhesion and as such she was not issued sterilization certificate by any doctor. Only serial number was to be maintained which was a clerical work. Complainant was apprised in simple language about the success rate of tubectomy operation. Since the operation of complainant was not completed, chance of conceiving the pregnancy was there.

4. The District Consumer Forum after going through the file and hearing the learned counsel for parties came to the conclusion that the complaint was devoid of any merit and dismissed the same. Still dissatisfied, complainant had filed appeal before the Haryana State Consumer commission which has now been transferred to this Commission under directions of the Hon’ble National Commission.

5. We have heard learned counsel for the parties and gone through the file carefully. It was contended on behalf of complainant that she went to the hospital for total sterilization and not for partial operation. When complainant could not be operated for left tube the doctor should have advised her to come for second time for the operation of both the fallopian tubes and due to negligence of operating doctor she got conceived and gave birth to an unwanted female child for which she is entitled to get compensation.

6. It is an admitted fact that Smt.Santosh –complainant went to General Hospital, Hansi for tubectomy but sterilization operation could not be completed since her left tube could not be ligated due to adhesion. This fact was also mentioned by OP on the Female Sterlization case card, a photocopy of which has been placed on file. Now question to be seen is whether there was any negligence on the part of operating doctor, so that he could be held responsible for damages. There is no expert evidence that there was any negligence in performing the tubectomy operation on the person of Smt. Santosh.

7. Further it has been observed by Hon’ble Supreme court in State of Haryana and others Vs Raj Rani (2005)7 supreme court cases 22 that childbirth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise. Similarly it has been held by the Apex court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 in para-D at page 3 that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth.

8. It is not the case that the surgeon performing the operation was not possessed of the requisite skill which he professed to have possessed, or, he did not act with reasonable competence in the given case. Further there is no allegation that the operating surgeon was not competent to perform the operation. Therefore, in view of the law laid down by the Apex court, OP cannot be held guilty because there is no evidence that the operation was performed by Dr. Hemant Kansal negligently. The tubectomy upon the complainant could not be completed as her left tube could not be ligated due to adhesion. Even if operation had been performed successfully then also there could be pregnancy as due to certain natural causes there could be spontaneous canalization. In the present case no evidence has been led that there was any negligence on the part of operating doctor.

9. In the present case there is no cogent and convincing evidence to show that the operating doctor was negligent in any manner while conducting the operation. Faced with this situation and keeping in view the entries incorporated in the medical record photocopy of which has also been retained on the file, we have no hesitation to hold that the complainant has failed to substantiate her case.

10. In view of our foregoing discussion, we find no illegality in the impugned order dated 9.10.2001 passed by the District Consumer Forum and the same is upheld. Consequently, the appeal fails and same is hereby dismissed, leaving the parties to bear their own costs.

Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.