Pushpabai vs S.JOSEPH

THIS is a complainant''s appeal against the order dated 31.12.1997 passed in Case No. 31/97 by the District Consumer Disputes Redressal Forum, Dewas (for short the ''District Forum'').

FACTS giving rise to this appeal are thus : The appellant is a house-wife of the financially stringent family who had already three children, two sons and one daughter, therefore, approached the respondent on 21.12.1993 for Tubectomy (T.T.) operation. Though, the respondent runs his own clinic, but, as the complainant gave her application and consent letter on 21.12.1993 of T.T. operation in the Family Planning Programme undertaken by the State Government, the T.T. operation was performed by the respondent and a certificate was issued by the Block Medical Officer. The appellant after the certificate got all benefits/advantages of the T.T. operation. The appellant alleged that due to negligence of the respondent the operation was unsuccessful as she conceived and gave a birth to an unwanted female child on 5.9.1995. The appellant is a poor lady and could not bear the additional economic burden for bringing-up the child, therefore, she had chosen to be operated upon sterilisation. Therefore, for the deficiency in service the appellant claimed compensation of Rs. 4,50,000/-. The complaint was resisted. It was submitted that the operation was performed free of charge in the Family Planning Programme undertaken by the Government of Madhya Pradesh. The complainant got the certificate and all the benefits which are being given to the persons who get themselves operated in the Family Planning Programme. There was no negligence on the part of the respondent. In such operations, there may be a failure 1:70 procedures and from such failures pregnancy is not preventable which may occur. The District Forum after appreciation of evidence held that the appellant has not made any averment in the complaint filed on 23.7.1997 that an amount of Rs. 2,000/- was paid as consideration for operation. It is only in the affidavit dated 19.12.1997 the appellant made an allegation of payment of fee while the appellant''s husband in his affidavit dated 23.7.1997 has also not made any averment on oath that the free or consideration of Rs. 2,000/- or any other amount was paid. The appellant belongs to a poor family, hence, how she would bear the expenditure of Rs. 2,000/- when the operations are performed in the Family Planning Programme undertaken by the Government of Madhya Pradesh in the Government Hospitals free of charge. In such circumstances as no consideration was paid the appellant was not a consumer as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (for short the ''Act''). Besides even assuming the appellant paid some consideration or fee, the appellant has failed to establish any negligence by producing expert evidence to record a finding of deficiency in service, hence, dismissed the complaint. We have heard Mr. Kamal Verma, learned Counsel for the appellant and Mr. M.S. Chouhan, learned Counsel for the respondent.

True, a doctor or a State must be held responsible in damages, if the sterilisation operation is a failure on account of medical negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person, who had chosen to be operated upon for sterilisation. "Negligence is a tort", every doctor, who enters into the medical profession has a duty to act with a reasonable degree of care and skill which is ''implied undertaking'' by a doctor of the medical profession that he would use a fair, reasonable and competent degree of skill.

THE Medical Officers entrusted with the implementation of the Family Planning Programme cannot, by their negligent acts, not performing the complete sterilisation operation, sabotage the scheme of National importance. Particularly in our country where the population is increasing by the tick of every second on the clock and the Government has taken a family planning as an important programme for the implementation of which it was created in mass awakening for the use of various devices including sterilisation. THE Doctor, as also the State, must also be held responsible in damages, if the sterilisation operation is a failure on account of the negligence, which is directly responsible for another birth in the family, creating additional burden on the person, who had chosen to be operated upon for sterilisation. However, the present has to be examined with the provisions of the Act to hold respondent responsible. From the evidence adduced by the parties it is evidently clear that the operation was performed by the respondent under the Family Planning Programme undertaken by the State Government, which is evident from the consent letter and the certificate issued. After the certificate, the appellant got all the benefits under the scheme. From the documents on record, it is evident that no fee or consideration was paid and the operation was performed under the Family Planning Programme free of charge, therefore, the appellant was not a consumer as defined under Section 2(1)(d)(ii) of the Act.

THIS Commission in Smt. Rajbai v. Madhya Pradesh Shasan & Ors., I (1999) CPJ 578, after referring the judgment of the Supreme Court in Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC), has observed in para 4 that who would be a patient and could be treated as consumer under Section 2(1)(d)(ii) of the Act and in para 8 what relief he would be entitled to get under the jurisdiction of Consumer FORA on the alleged negligence. We quote relevant paras 4 and 8 thus : "4 ....It would be advantageous to notice the relevant clauses contained in the definition section of the Consumer Protection Act at this stage particularly the definition of "consumer". Section 2(1)(d) and particularly Sub-clause (ii) of this section is the one with which we are concerned in this case. Under that sub-clause, "consumer" means any person who hires any service for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person. Perusal of above definitions contained in Section 2(1)(d), Sub-clause (ii) and Section 2(1)(o) we find that the complainant is neither a consumer nor the services provided by opposite parties fall within the purview of definition of "service" under Section 2(1)(o). Therefore, this case can be dismissed on this short point only. Similarly on examining her allegations of carelessness or negligence on the part of Doctors, we find that complainant has not provided any expert evidence in support. Also when we apply the test laid down in Supreme Court judgment we find that complainant has failed to establish the charge of negligence. On the other hand opposite parties have quoted authorities to demonstrate that family planning operation cannot guarantee 100% success and there are always chances of 5 to 8% failure. We thus find that allegations regarding negligence are not established."

In case of Smt. Anita Shrivastava v. Dr. Smt. Chanda Jain & Ors., Original Case No. 6/96 decided on 5.1.2000, the question was again considered. This Commission following the decision of the Supreme Court in Indian Medical Association v. V.P. Shantha (supra), and the decision in case of Smt. Rajbai v. M.P. Shasan Sachiv, Lok Swasthya Avam Pariwar Kalyan Vibhag & Ors. (supra), observed that the services rendered of performing the Family Planning Operation was free of charge and the patient on whom the family planning operation was performed in the Family Planning Programme is neither a consumer as defined under Section 2(1)(d) of the Act nor the services provided fall within the purview of definition of service under Section 2(1)(o) of the Act. As to negligence, it was observed that in T.T. operation performed by a highly approved method wherein the tube is grasped at or just distal to its mid-portion, a calcium is used to crush the tube at its base. Non-absorbable sutures are used to ligate the tube at the crushed sites. The knuckle of tube is excised. In such method of the operation, the failure is 1:70 and a case may fall in that rate. In Williams Obstetrics 20th Edition in the heading of xiv Family Planning dealing in Section 14 with surgical contraception failure rate inspite of all skill, reasonable degree, care has been shown approximately 1 in 400 procedures. In heading of Tubal Sterilization Failures, the author describes : ''No method of tubal sterilization is without failure, and both uterine as well as ectopic pregnancy may result from such failure''. For the failure various causes have been given by the author who concludes that most sterilization failures are not preventable.

IN the present case in the absence of any expert evidence of negligence on the part of the respondent, it is not possible to record a finding of deficiency in service, therefore, the District Forum was right in holding that the respondent was not deficient in service.

IN the circumstances, the appellant if so advised, may take appropriate proceedings in the Civil Court of competent jurisdiction against the respondent and the State Government for establishing negligence and to claim the damages. In the result, the appeal fails and is dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the Case. Appeal dismissed.