PREMLATA DHAKONIA vs DHEERAJ GARHA

THIS appeal is by the husband and wife alleging deficiency in service by the respondent on account of failed operation of tubectomy on Premlata, first appellant, who is the wife of the second appellant. On complaint filed by the appellants claiming damages amounting to Rs. 6,20,000/- Madhya Pradesh State Consumer Disputes Redressal Commission dismissed the same holding that there was no negligence on the part of the respondent Dr. Dheeraj Garha.

ON 3.4.1986 at the time of delivery of the second child, a girl which was caesarean delivery tubectomy operation was also carried out on the first appellant by the respondent. It is alleged that in spite of tubectomy operation first appellant got pregnant in the year 1996 after 10 years of the operation and she delivered a girl child on 15.11.1996. For this appellants claimed Rs. 6,20,000/- as damages from the respondent out of which Rs. 4.00 lakhs are claimed towards education and marriage expenses of the new born. The fact that tubectomy operation was performed on the first appellant to prevent any pregnancy, is not disputed and since in spite of that first appellant became pregnant negligence is attributed to the respondent. It is not that there is any other evidence to allege negligence.

Respondent raised two preliminary objections. (i) operation was performed in 1986 and this complaint has been filed alleging deficiency in service after 10 years would certainly be barred by limitation, and (ii) that tubectomy operation was performed free of charge.

IT is difficult to accept first preliminary objection. That there was deficiency in service would come to knowledge only when first appellant became pregnant and that would give the cause of action to file the complaint. Cause of action would start from the date of knowledge of the pregnancy. Though the State Commission has held that complaint will be barred by limitation, we are unable to agree. That respondent did not charge any fee for performing any tubectomy operation is not disputed. Respondent stated that he is recognised Government Surgeon for performing tubectomy operation and his Nursing Home is recognised by the Government of Madhya Pradesh for the purpose. He said that tubectomy operation is performed free of any cost and the woman on whom the said operation is performed becomes entitled for benefits such as green card issued in her favour which in turn entitled her to other benefits. That being the position the complaint would certainly fail.

STATE Commission nevertheless went into the controversy on merit of the case and on that basis also held that no negligence would be attributed to the respondent. We agree. At the time of operation appellants were informed that neither doctor nor Government would be liable if any time after the tubectomy operation there is pregnancy. In fact such an undertaking was also got written from the appellants. Then a complaint was lodged by the appellants before the Medical Council of India who constituted a Committee of two medical doctors who opined that there was no negligence on the part of the respondent. Report of Medical Council of India and the affidavits of the two doctors appointed by the Medical Council of India were brought on record. There is nothing on record to contradict the stand taken by the respondent. If an operation fails it cannot all the times be attributed to the negligence. Every case depends upon the circumstances of that case. If the appellants did not want a third child they could have got pregnancy terminated under the Termination of Pregnancy Act, 1971. (Explanation II to Section 3 of the Act). However, they waited for the nine months and when a girl child was born they thought it fit to file a complaint. Perhaps if it was a boy appellants would have been a happy couple. If the appellants felt so much aggrieved they would certainly have issued notice to the respondent immediately after pregnancy came to their knowledge. There is no explanation why they did not do so and waited for the birth of the child. Competence of the respondent to perform tubectomy operation had not been questioned. We, therefore, uphold the order of the State Commission and would dismiss this appeal. Appeal dismissed.