Haryana

StateCommission

A/54/2023

SHARDA DEVI - Complainant(s)

Versus

DR. ANITA SHARMA AND ANOTHER - Opp.Party(s)

NIPUR VERMA

04 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

                                                                   First Appeal No. 54 of 2023

Date of Instituion:20.01.2023

                   Date of order:04.05.2023

 

First Appeal No.54 of 2023

 

IN THE MATTER OF

 

Sharda Devi, aged 39 years W/o Sh.Krishan Kumar, R/o Village Ludas Tehsil and District Hisar Aadhar Card No.5813 2347 1957.

 

Through Mr.Nipun Verma proxy counsel for Mr. Mani Ram Verma, Advocate for the appellant.

…..Appellant

Versus

 

1.    Dr. Anita Sharma, MBBS DGO,Sharma Ravin Hospital Budhla Sant Hanuman Mandir Rishi Nagar, Near Bus Stand Hisar.

 

2.    Sharma Ravin Hospital, Budhla Sant Hanuman Mandir, Rishi Nagar, Near Bus Stand Hisar through Director.

….Respondents

 

 

CORAM:   S.P.Sood, Judicial Member.

 

 

Present:-    Mr.Nipun Verma proxy counsel for Mr. Manhi Ram Verma, Advocate for the appellant.

 

O R D E R

 

S. P. SOOD, JUDICIAL MEMBER:

 

 

Appellant-complainant has preferred this appeal against the order dated 23.11.2022 passed by the learned District Consumer Disputes Redressal Commission, Hisar (In short “District Commission”), vide which her complaint was dismissed.

2.       The brief facts of the complaint are that  complainant alongwith her husband went to the opposite parties to get her tubectomy operation. The complainant informed to the treating doctor that she has two children i.e. Geeta Devi and Anil Kumar. The complainant did not want to conceive further. She requested the Ops for tubectomy operation. On the assurance given by the treating doctor, the complainant underwent the said operation. OP No.1 even gave a closure certificate bearing No.881 dated 19.07.2004 to complainant however despite operation, the complainant become pregnant against her will and even gave birth to a girl child on 15.09.2016. Afer this development, complainant visited the OPs hospital and asked that as to how they had assured complainant that after her surgery she will not conceive.   Faced with this situation, she came to know infact that OPs doctor did not have authority to perform this operation.  This is how complainant requested the Ops to compensate her for upbringing and educating this third child named Sangita. Thus there was negligence in service on the part of the Ops, hence the complaint.

3.      Notice issued. Opposite parties appeared and filed reply raising several preliminary objections such as accruing cause of action and maintainability of complaint etc. On merits, it was submitted that complainant underwent tubectomy operation on 19.07.2004 and was discharged on the same day and certificate was also issued to her. At the time of discharge, the complainant did not  follow the necessary instructions. Infact complainant was instructed to consult the operating doctor, if at any time in her life if her periods got delayed for ten days or more but she never came to them and further OPs did not give any assurance that after this procedure she will not conceive in future. The complainant has not followed the proper care and caution at the time of operation and discharge. It was further alleged that she had undergone the procedure of tubectomy and not sterilization, there was always the chances of failure of the this operation. She never approached the OPs after getting this operation.  The Ops were well competent to conduct the operation as they are qualified doctors with degree of MBBS and diploma in Gynecologist.  The complainant herself was willing to give birth to an additional child. The complainant delivered the child willingly as per her own will. Thus there was no negligence on the part of the Ops and dismissal of the complaint as prayed for.

4.                After hearing the complainant, learned District Commission, Hisar dismissed the complaint vide order dated 23.11.2022 as mentioned above.

5.               Feeling aggrieved therefrom, appellant-complainant has preferred this appeal.

6.                This argument have been advanced by Mr.Nipun Verma proxy counsel for Mr. Mani Ram Verma counsel for the appellant. With his kind assistance entire record of the appeal has been properly perused and examined.

7.                It is not disputed that the On 19.07.2004, complainant got conducted the tubectomy procedure from the opposite party No.1.It is also not disputed that after operation, OP issued certificate.  It is also not disputed that on 25.09.2016 another female child was born to the complainant. Perusal of the file shows that the complainant was not entitled for any compensation because the failure of tubectomy operation of the complainant does not fall within the definition of ‘medical negligence’ and ‘deficiency in service’ because a doctor cannot give 100% guarantee of success of the sterilization. Hon’ble Supreme Court in case STATE OF PUNJAB Versus SHIV RAM AND OTHERS, (2005) 7 Supreme Court Cases 1, wherein it has been held that:-

“25.  We are, therefore, clearly of the opinion 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 can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam’s test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.

26.    The cause of failure of the sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at subsequent operation of sterilization. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation.

27.    Mrs. K. Sarada Devi, the learned counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court in State of Haryana vs. Santra wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilization operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts.

28.    The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite 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 doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to sub-section (2) of Section 3 provides:

                   “Explanation II- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

29.    And that provides, under the law, a valid and legal ground for termination of pregnancy. 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.

30.    The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone the sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.”

          The observations made by the Hon’ble Supreme Court in STATE OF PUNJAB Versus SHIV RAM AND OTHERS’ case (Supra) would fully apply to the facts of the instant case.  Hence, we feel that there was no medical negligence and deficiency in service on the part of the opposite parties No.1 and 2.  The learned District Commission had committed no illegality while passing the order dated 23.11.2012.  The appeal is also devoid of merits and stands dismissed in limine.

8.                Applications pending, if any stand disposed of in terms of the aforesaid order.

9.                A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

10.              File be consigned to record room.

 

 

4th  May, 2023                                                                                 S. P. Sood                                                                                                                            Judicial Member                            

S.K(Pvt. Secy.)