Esakkimuthu vs P DHANAM

-REGISTERED notice issued by this Commission on 6. 7. 2007 to the petitioner has not come back unserved. Since 30 days lapsed, it is presumed that notice has been served on the petitioner.

THIS is a case wherein the complainant has alleged medical negligence on the part of the opposite party Dr. R. Dhanam on Sri Manjuram Hospital, Rajapalayam stating that the doctor did not diagnose her properly with the result the complainant had to continue with pregnancy and give birth to a female child. Complainant had undergone sterilization operation on 11. 3. 1992 as she had by that time one male and female child. 8 years after the surgery she became pregnant again during December 2000. Complainant consulted the opposite party, Dr. Dhanam at Rajapalayam as her menstrual cycle had stopped. The doctor investigated and told her that there was no pregnancy and gave her a list of medicines, tablets and tonics for getting regular menstruation and charged Rs. 50 as consultation fee. Subsequently, the petitioner consulted Dr. Bharati Lakshmi who tested her by ultrasound and stated that the petitioner was pregnant for 5 weeks. Subsequently, in the month of September she delivered a female baby. Alleging wrong diagnosis which resulted in the birth of 3rd child (female) she filed a complaint claiming compensation of Rs. 3 lakh along with cost. The District Forum allowed the complaint and directed the doctor to pay Rs. 1 lakh as compensation along with cost of Rs. 1,000. Aggrieved by the order of the District Forum Dr. Dhanam filed an appeal before the State Commission. After going through the records of the District Forum, the State Commission held that the complainant conceived 8 years after tubectomy operation and as soon as the opposite party received the lawyer''s notice she contacted the higher authorities who had sent a letter stating that the complainant would be given Rs. 5,000 in the event of a child being born subsequent to sterilization operation. State Commission allowed the appeal and dismissed the complaint.

The Apex Court in State of Punjab v. Shiv Ram and Ors. , IV (2005) CPJ 14 (SC)=vi (2005) SLT 498=iii (2005) ACC 717 (SC)=air 2005 SC 3280, held that "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. Section 3 (2), Explanation II provides that 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".

THIS citation is relevant to the case on hand. It is a well known fact that sterilization (tubectomy) does not guarantee 100% proof against future conception. In exceptional cases, this surgery can fail. That is why the Government has formulated a scheme to give some compensation and accordingly the concerned doctor obtained permission to pay Rs. 5,000 to the respondent. Secondly, the complainant had gone to Dr. Dhanam in the month of December and she delivered the baby in the month of September which is 9 months later. It is difficult for any doctor to detect pregnancy at such an early stage. Also, the record shows that the doctor had given medicines, tonic, etc. to regulate the periods and strengthen the uterus and not terminate the pregnancy. The complainant had not filed any affidavit of Dr. Bharati Lakshmi to prove the doctor''s conception. The aversion to give birth to a female child is not a healthy trend. The complainant has not proved her case and the State Commission has given detailed reasons for arriving at their conclusions. As there is no material irregularity or jurisdictional error in the order of the State Commission warranting interference in revisional jurisdiction under Section 21 (b) of Consumer Protection Act, 1986, the revision petition is dismissed. R. P. dismissed.