DHANMANI DEVI vs Sudha Kumari

SMT. Dhanmani Devi who was the complainant in the District Forum is the appellant. Dr. Sudha Kumari and Md. Abdul Karim, Managing Director of the Katihar Medical College who were the O.Ps. before the District Forum are the respondents.

THIS appeal is against an order dated 10.11.2004 passed by the District Forum; Katihar in Complaint Case No. 117/2003 by which order the complaint was dismissed as not being maintainable. The respondent No. 2, A. Karim, Chairman-cum-Managing Director, Katihar Medical College has also filed a rejoinder and a copy of letter dated 23.9.2004 sent by the Principal, Katihar Medical College and President of the District Forum, Katihar.

We have heard the parties and perused the records including the rejoinders and rulings filed.

BRIEFLY the complaint was that the complainant had already three children and when she conceived a fourth child, she and her husband felt it undesirable to have a fourth child and she got admitted in the Katihar Medical College on 24.3.2003 for termination of pregnancy and tubectomy. An operation was done on her on 26.2.2003 and she got discharged from the hospital after four days. Yet when she felt some movement in her abdomen after a couple of months she and her husband visited the Katihar Medical College on 21.6.2003 when they came to know that she was pregnant and carrying a baby of five and half months. The respondent No. 1, Dr. Sudha Kumari was not ready to take any further action due to risk factor and advised her to have the birth of the child. In October, 2003, she gave birth to a baby girl as her fourth child. Thus alleging negligence and carelessness, the complaint was filed in the District Forum for a compensation of four lacs of rupees. The plea of the respondents before the District Forum were as follows. That the complaint petition itself is time barred because the complainant was admitted in the hospital on 24.3.2001 and operated upon on 26.3.2001 and discharged from the hospital on 2.4.2001. Yet the complaint was filed after the limitation period on 29.9.2003. Further the complainant is not a consumer under the C.P. Act because the Katihar Medical Hospital is a charitable institution giving medical assistance to the poor.

THE impugned order shows that the District Forum had called for the admission register of 24.3.2001 and indoor operation register of 26.3.2001 and a perusal showed that there is no mention of Dr. Sudha Kumari in either. When the District Forum called for specific report from the Principal, Medical College copy of which had been filed shows that O.P. No. 1 Dr. Sudha Kumari did not take part in the operation of the complainant on 26.3.2001. Hence, the District Forum held that the complaint against O.P. No. 1, Dr. Sudha Kumari has not been proved or established. After careful consideration the following questions crop up. Firstly whether the complaint was time barred. There is no indication in the impugned orders that there was any application for consideration of delay or the delay having been condoned. Actually if the complainant had undergone operation for the termination of pregnancy and tubectomy on 26.3.2001 the submission in the appeal that even after the operation she felt movement in her abdomen about her pregnancy and again approached the Katihar Medical College Hospital for abortion which was not agreed to by the doctor and advised to have the birth of the child clearly indicates that the complainant was aware of a growing pregnancy in spite of the abortion and tubectomy, yet she waited for the birth of the baby before filing a complaint. This really means that there was a long gap of time between the abortion date and the actual birth of the child which was in the knowledge of the complainant and yet she chose to wait till the child birth to file complaint. Thus there is definitely a big question of limitation in this matter. The plea of the respondent that the complainant is not a consumer because the Katihar Medical College Hospital is a charitable institution treating patients free of charge does not hold good any longer. It is true that earlier rulings were that if the patients are not charged and free medical aid is given, the patients cannot be considered as consumer under the C.P. Act. There are a number of rulings of Hon''ble National Commission and other State Commissions to indicate that not charging any fee from any poor patient does not absolve the hospital from the definition of the C.P. Act in so far as the complainant being a consumer under the C.P. Act. But the questions whether the complaint is dismissed as being not maintainable under the C.P. Act or other considerations.

THE Hon''ble Supreme Court in case State of Punjab v. Shivram, IV (2005) CPJ 14 (SC)=VI (2005) SLT 498, have clearly held that a woman merely havin undergone setrilization operation became pregnant and delivered a child, the operating surgeon cannot be held for compensation on account of unwanted pregnancy or child. Claim in tort sustainable only if there was negligence on the part of Surgeon in performing the surgery. Further the Supreme Court have held in the case of Jacob Mathew v. State of Punjab, III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC), have clearly ruled that a complaint may not be entertained unless the complainant produced prima facie evidence before the Court inform of credible opinion given by another competent doctor to support charges of rashness or negligence on the part of the accused doctor. Further it has also been consistently held by different Consumer Forums that in spite of tubectomy operation possibility of conception cannot be ruled out even after successful operation and in such a case of pregnancy after lapse of time no negligence or deficiency in service is proved. It has also been held by rulings that even after undergoing such an operation, woman can conceive and give birth to a child against the parents'' wishes because of the risk involved in the failure inherent in female sterilization, despite due care and caution.

IT is thus clear that in spite of sterilization, pregnancy can continue and what is needed is proof and establishment of the fact that there was carelessness or negligence on the part of the doctor. After considering all aspects of the matter we agree with the findings of the District Forum that there was no negligence in service specially on the part of Dr. Sudha Kumari and the complaint itself was liable to be dismissed as being time barred.

Under such circumstances, we do not feel any need to interfere with the impugned order of the District Forum. In result, the appeal is dismissed. However, there will be no order as to cost. Appeal dismissed.