B. DUBEY, DUBEY NURSING HOME vs BHAGVATI SHARMA

-THIS appeal under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 28.4.2000 in Complaint No. 52/1997 by District Consumer Disputes Redressal Forum, Bilaspur (hereinafter called the ''District Forum'' for short) awarding a sum of Rs. 20,035/- as compensation as also cost of Rs. 1,000/- to the complainant.

THE complainant/respondent averred in her complaint that tubectomy operation was conducted by appellant doctor on 5.3.1991. Despite the above operation, she again became pregnant. According to the complainant/respondent the tubectomy operation was not properly conducted by the appellant doctor. THErefore, she claimed compensation of Rs. 3.00 lacs. The complaint was resisted by the appellant doctor. According to her version the pregnancy as above took place after more than 4 years of the operation. It was averred that such pregnancy cannot be subscribed to any negligence or technical fault, and was not due to deficiency in service on the part of the appellant. It was averred that the sterilization procedure of the complainant was done at the request of the complainant/respondent as per modified pomeroys MTP method which is in routine considered the best method of the above procedure. It was averred that second conception could be caused due to reasons, beyond the control of any doctor. It was further averred that reconception takes place due to reunion of cut ends of the tube as a result of physiological process in some persons. Recannallization as above is not due to any fault of operation and sterilization of the female is not 100% successful.

The District Forum held that tubectomy operation was not done properly which resulted in second conception. Accordingly compensation was awarded.

UNDISPUTABLY the tubectomy operation was conducted in 1991 and second conception took place after a lapse of about 4 years. The question that arises for consideration is as to whether subsequent pregnancy after tubectomy operation was on account of due to any fault in operation by the appellant? There is no material on record to indicate so. The complainant has not produced any expert opinion on the above aspect. It is common knowledge that tubectomy operation cannot be treated as 100% toll proof and possibility of reconception after such an operation cannot be completely ruled out. In Shaw''s Textbook for Gynaecology at page No. 349 it was stated that all method of Tubal ligation have been reported to fail in certain instances, though if the operation is carefully performed, failure rate is infinitely small. It was stated therein that such operations have been succeded by many recorded instances of subsequent recanalisation and pregnancy. Similarly, in the Journal of Obstetrics and Gynaecology of India in the article authored by Rakesh Arora and others cases of failure in female sterilization have been discussed. It was stated in the said article that failure on account of unknown causes also occurred in about 18% cases. Thus it is clear that even after successful tubectomy operation possibility of conception cannot be ruled out. It may also be mentioned that MP State Commission in Pushpa Bai v. Dr. S. Joseph, II (2000) CPJ 566 in Appeal No. 145/1998 decided on 28.4.2000, has observed that as per medical texts, sterilization failure are not preventable. It was further held that in the absence of expert evidence of negligence on the part of doctor, it was not possible to record a finding of deficiency in service. Similarly in Dr. N. Sandhya Rani v. Kalpana & Ors., III (1999) CPJ 6 A.P. State Commission, held that there is possibility of reunion of tubes in the natural course after 2 years, after tubectomy operation took place and in the absence of any material to hold there was any negligence, doctor cannot be held liable even if, subsequently, pregnancy occurs.

IN the instant case also there appears to be no material to hold that operation of tubectomy was performed by the appellant negligently. It cannot be held that appellant has committed deficiency in service. Accordingly, the complainant/respondent cannot succeed in her complaint. District Forum erred in allowing the complaint and awarding compensation against the appellant. The appeal is, therefore, allowed. The impugned order is set aside. The complaint is dismissed. The parties shall however bear their own cost of this appeal. Appeal allowed.