PADMA N. RAO vs Ashabai

THE opposite parties have preferred this appeal against the order of the Salem District Consumer Disputes Redressal Forum which directed them to pay a compensation of Rs. 25,000/- towards mental agony and Rs. 500/- as costs.

THE gist of the complainant''s case is that in spite of sterilization operation underwent by her at the hands of the opposite parties, she conceived and thus there was negligence on their part. Hence they are liable for deficiency in service. THE complainant was working as a nurse at Erode. She underwent family planning operation on 8.5.1991. She immediately left for a job in Saudi Arabia in 1993. She joined as a nurse there. While she was working, she became pregnant and, therefore her services were terminated by the hospital there on 15.1.1994. Thus, from 15.1.1994 she lost her job and earning. As result, she was put to much mental agony and, therefore, she has chosen to approach the lower Forum for certain reliefs. The opposite parties contended that there was no negligence and that the operation was done according to the norms with latest equipments and if the complainant had conceived subsequently, the opposite parties cannot be held responsible and there was no negligence or deficiency in service and hence the complaint should be dismissed.

After going through the records produced by the parties, we are of the view that this appeal has to be accepted. The operation was done in the year 1991. It is stated that she conceived in the year 1993 and was sent back to India in 1994. But she has chosen to approach the Court only in the year 1995. She has waited for nearly more than two years after she conceived. After obtaining a certificate from the 1st opposite party she has now come forward with this complaint. Thus, this conduct of the complainant would show that the claim is not maintainable. The complainant has not stated how and in what manner there was negligence on the part of the opposite parties doctors in conducting the operation. She has not adduced any material either in the shape of an expert opinion or any other oral evidence. Merely because the complainant who underwent sterilization operation conceived at a later point of time, negligence cannot be presumed. It has to be stated that there is no method of sterilization which is entirely safe and complete and there are possibilities of failure of operation due to many natural reasons. Therefore, pregnancy or fertilization after operation is always not sufficient to jump to the conclusion of negligence on part of the doctor, for biological factors cannot be overlooked. Even if the sterilization operation is performed by cutting or disconnecting the fallopian tube, even then, nature would find its way by canalization through some other means, which happens not infrequently. Merely on that account, one cannot jump to the conclusion that there has been negligence on the part of the opposite parties doctors who carried on the operation. Negligence must be manifest and apparent and it must be shown that as a result of some overlooking or as a result of some basic precautions not having been taken while performing the operation, fertilization has taken place. It is not possible to accept the case of the complainant. The Gujarat State Consumer Disputes Redressal Commission has held, relying upon three decisions of the Gujarat High Court in Bharuch District Panchayat and Others v. Kanubhai Raijibhai Patel and Others, (1996 (1) GLH 584), and two other matters which have not been reported, that the complaint to recover damages for tortuous liability because of failure of family planning operation is no longer res integra and negligence on the part of the Medical Officer in performing family planning operation is not legally sustainable cause of action entitling the aggrieved to claim compensation on that count. While quoting "Operative Obstetrics" (VIII Edition) written by Munoro Karr in Chapter on "Sterilization", it has been observed that "No method of sterilization is entirely safe and complete and there are possibilities of failure of operation due to many natural reasons also". "Therefore, the pregnancy or fertilization after operation is always not sufficient to jump to the conclusion of negligence on the part of the doctor." These observations, in our opinion, of the Gujarat State Commission quoting the decision of the Gujarat High Court would apply on all fours to the facts of the case on hand. The mere fact that the complainant conceived will not lead to any inference that there has been any negligence or deficiency in service on the part of the opposite parties. The complainant was working as a nurse in a hospital at Erode. Strangely she chose to go to the opposite parties for undergoing sterilisation operation. Thereafter after some time, she leaves for Gulf countries and returns in the year 1994. She does not think of or take steps to terminate the pregnancy when she came to know of it but bears the child. She waits for some more time and then leisurely approaches the Consumer Forum. With a view to fortify her case before approaching the Court she obtains a certificate from the opposite parties that they performed the sterilization operation and then has chosen to file this complaint, thus attempting to stab them with their own stilletto. She was discharged from her employment in Saudi Arabia in January, 1994 and immediately on reaching the Indian soil she rushes to Salem Policy Clinic and obtains a certificate. This would only show that her claim is not bona fide. Therefore, in such circumstances, we have no hesitation in holding that there is no negligence or deficiency in service on the part of the opposite parties and, therefore, it is a fit case where the order of the lower Forum should be set aside.

IN the result, the appeal is allowed, but in the circumstances without costs. The order of the lower Forum is hereby set aside. Appeal allowed.