GOVT. OF NCT OF DELHI vs BABITA

THE present Revision Petition has been filed before this Commission under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 11.7.2013 in Appeal No. 192 of 2009 passed by the State Consumer Disputes Redressal Commission (in short, ''State Commission''). The State Commission dismissed the Appeal. The Appeal was filed against the orders passed by the District Consumer Disputes Redressal Forum, (in short, ''District Forum'') in Complaint No. 142/2005 dated 18.10.2008. The Complainant, Smt. Babita, underwent a Laparoscopic Tubectomy (Sterilization operation) on 10.4.2002. Thereafter, she got conceived and delivered a female baby on 18.12.2004. Hence, she alleged the deficiency in service on the part of OP who conducted the tubectomy operation negligently which caused pregnancy. She filed a complaint before the District Forum.

THE District Forum allowed the complaint and directed the OP to pay Rs. 30,000 towards negligence in tubectomy operation and Rs. 60,000 for bringing up the child, Rs. 3,000 towards the mental agony and Rs. 1,000 as costs. The District Forum observed that suffering and delivery of the child after the operation, clearly shows deficiency in service on the part of OP. The OP approached the State Commission by way of filing the first appeal which was partly allowed and the order of the District Forum was modified. The State Commission directed the OP -1 to pay a total compensation of Rs. 1,00,000 to the Complainant and granted permission to file a claim as per the policy of Government of NCT of Delhi, made under the direction of Hon''ble Supreme Court for ex gratia payments to the acceptors of failed sterilization operation/tubectomy operation. It further, ordered that the Insurance Company shall pass the claim of the Respondent/Complainant within thirty days from the date of filing of the claim. The State Commission also directed the Principal Secretary of Health to ensure that all Hospitals/Nursing Houses in Delhi, prominently display the guidelines to be followed by the acceptors of Tubectomy operations as well as failure percentage of tubectomy operations and the ex gratia compensation scheme of the Government of NCT of Delhi in respect of acceptors of sterilization/operations

AGGRIEVED by the order of the State Commission, the Petitioner/OP filed this Revision Petition.

WE have heard the Counsel for both the parties. There is a delay of 75 days in filing this Revision Petition. The Counsel for Petitioner/OP brought our attention towards the application for condonation of delay and explained that the delay was due to departmental procedures. In the interest of justice, we condone the delay. On merits, the Counsel for OPs argued that the Complainant had signed the Consent, which clearly explains that there are chances of failure of the tubectomy operation and that the Complainant also had to take all due care in case of any missed menstrual cycle and had to report the same, within two weeks. Therefore, in case of failure to comply with the instructions mentioned in the consent letter, the OPs are not liable. Also Counsel for OP submits that, it is a Government Hospital rendering free services, therefore, the Complainant is not a ''consumer'' and both the Fora below have arbitrarily awarded the compensation.

THE rival arguments advanced by the Counsel for the Complainant that even though the OP -hospital is a Government Hospital, but all the services are not ''free of charge''. He further submits, that the Complainant was never told about the details of consent letter. It was in English language and as she was an illiterate lady, she put her signature on the consent letter. Also, the quantum of compensation is on lesser side as she has to incur more expenditure for bringing up the unwanted family child.

AFTER our thoughtful consideration and referring to Hon''ble Apex Court''s judgment in Indian Medical Association v. V. Shanta, : III (1995) CPJ 1 : I (1996) CLT 81 (SC) : AIR 1995 SC (4) I, we are of the opinion that the Government Hospitals cannot be absolved from their liability absolutely, in cases of medical negligence. Hence, the Complainant is a consumer. We have perused the consent letter which is reproduced as below: "The clause/undertaking in the consent letter states: "I know that for all practical purpose this operation is permanent and that after the operation I will be unable to have any more children.

I also know that there are still some chances of failure of the operation, for which the hospital/institution and operating doctor will not be held responsible by me or my relatives or any other person whomsoever. I will report to the centre/doctor, if there is any missed menstrual cycle of mine/my spouse within two weeks."

Thus, it is clear that the OP had taken the proper consent.

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 child birth. The legal issue concerns failure of tubectomy. The Hon''ble Supreme Court in State of Haryana v. Santra, : IV (2000) SLT 93 : I (2000) CPJ 53 (SC) : (2000) 5 Supreme Court Cases 182, clearly states that the doctor as well as the State must be held responsible, if sterilisation fails on account of negligence.

BUT , in this case on hand, Dr. Babita is a qualified gynaecologist. There was no negligence in conducting the operation, it was laparoscopic sterilisation. The doctor who performed the surgery has not committed breach of any duty cast on her, as a surgeon. The surgery was performed by a technique known and recognized by medical science. Therefore, in our opinion, failure due to natural causes, would not provide any ground for claim. It is for the woman who has conceived the child has to decide whether to go for medical termination of pregnancy or not. Once, the woman misses the menstrual cycle, it is expected for 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. Having gathered the knowledge of conception in spite of having undergone 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 contention of Complainant about, not putting hoardings in the hospital premises has no significance. Even if the hoardings are there, we cannot expect that each and every couple will read and understand it. The illiterate will see it, but never understand the ''ABC'' of such advertisements. On the basis of foregoing discussion, we do not find any negligence on the part of doctor and the State, therefore, we set aside the orders of both the Fora below and allow this revision petition and dismiss the complaint.