BALWINDER KAUR vs State of Punjab

BRIEFLY stated the facts are that complainant was having two sons who were born through caesarean operation and as such she did not want to take risk of another pregnancy, so, she approached Rajindera Hospital, Patiala for tubectomy operation. The operation of tubectomy was performed on 25.2.98 by respondent Nos. 5 to 7.

IT was next averred that inspite of operation, she became pregnant and delivered a male child on 2.11.2001. The copy of the birth certificate is Annexure C-2. It was further averred that family planning operation was performed by opposite party Nos. 5 to 7 negligently and without due care and caution. She had even approached the said doctors that she had become pregnant despite tubectomy operation but they neither gave any reply, nor suggested any solution for the same.

It was further averred that due to birth of third child, she suffered much pain and agony and required a lot of money for upbringing the unplanned child.

ALLEGING deficiency in service, she claimed compensation of Rs. 4,90,000 along with interest @ 18% p.a. from the date of receipt of legal notice and further Rs. 25,000 as damages for mental agony and harassment and Rs. 5,500 as litigation expenses. The name of opposite party No. 7 Doctor Jaswinder Bhatia was deleted as per order of Punjab State Commission dated 7.5.2003.

OPPOSITE parties contested the complaint and filed written replies. OP Nos. 1 and 3 did not file any written reply. OP Nos. 5 and 6 filed separate written replies. They denied the allegations and stated that before conducting tubectomy operation, complainant was explained about the success rate of operation and she was specifically told that it was not 100% success and even if after operation she suffered pregnancy, then she would be given M.T.P. services which are available in all Government hospitals. They further stated that tubectomy operation was performed by trained and well experienced doctors with more than 30 years of experience and it was done with care and caution and there was no negligence on their part and since, operation was not 100% success as there were chances of failure from 0.6% to 4.9%. She conceived the child and with her sweet will she continued with conception. Afterwards, she cannot take benefit of her own wrong. The affidavit of Dr. Khushpreet Kaur, Assistant Professor has been filed on behalf of opposite party No. 4. She also denied the allegations and stated that if complainant had approached the authorities for having pregnancy terminated after tubectomy operation, then she should have been given M.T.P. service which is freely available in all Government hospitals. By getting MTP done, she could have got rid of unwanted pregnancy. She next stated that before operation complainant was informed that operation was not a 100% success and there were chances of failure. Parties adduced their evidence by way of affidavits.

WE have heard Counsel for complainant Sh. Balwinder Singh, Counsel for OP No. 6 Mr. G.S. Thind, Counsel for OP No. 4 Mr. S.P. Singh, Munish Kumar, clerk on behalf of opposite party Nos. 1 to 3 and carefully gone through the file.

IT is an admitted fact that the complainant was operated by a team of doctors i.e. OP No. 5 to OP No. 7 on 25.2.1998 in Rajindera Hospital, Patiala. At that time Dr. Surjit Kaur Bajwa, respondent No. 5 was the incharge of Gynae and Obstetrics Unit-II, Rajindera Hospital, Patiala and Dr. Sudesh Goyal and Dr. Jaswinder Bhatia had done tubectomy operation. There was no dispute about it that despite family planning operation, complainant had become pregnant and delivered a male child on 2.11.2001. If complainant did not want to deliver child, then she could have gone for M.T.P. Certainly if she had approached the hospital, then MTP could have been done and she could have got rid of unwanted pregnancy. However, she willingly carried pregnancy and delivered a male child. According to literature, the tubectomy operation is not a 100% success. There are chances of failure from 0.6% to 4.9% inspite of the fact that operation was done with due care and caution. The Hon''ble Supreme Court in Civil Appeal No. 5128 of 2002 decided on 25.8.2005 titled State of Punjab v. Shiv Ram & Ors., IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=2005 (4) Recent Civil Reports 100, has observed that merely because a woman having undergone a sterilisation 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 only be sustained if there is negligence on the part of surgeon in performing the surgery. It is not the case that performing surgeon 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 lady surgeon was not competent to perform the surgery. There is no evidence that the lady surgeon was negligent in performing surgery.

There are other alternative methods of female sterilisation operation which are recognised by medical science but none of them is a 100% success. There is no evidence that the lady doctor had given assurance that the operation would be 100% success. On the other hand they have stated in their affidavit that they had told the complainant that operation of tubectomy was not 100% success. Since, complainant had got conception inspite of having undergone sterilisation operation and did not opt for M.T.P. under the Medical Termination of Pregnancy Act, 1971, so, she was at fault.

HENCE, in view of the discussion above, we hold that there was no deficiency in service on the part of opposite parties. Consequently, complaint is dismissed. However, in peculiar circumstances of the case, parties are left to bear their own costs. Copies of this order be communicated to the parties, free of charge. Complaint dismissed.