R.SHANMUGA CHANDRA VADIVU vs SIR IVAN STEDFORD HOSPITAL

THIS action has come up for admission before us today.

WE heard arguments of learned Counsel Sharmila Prabakar, representing learned Counsel Mr. V. Subramanian, appearing for the complainant. We perused carefully the averments made in the complaint and also the connected documents filed alongwith it.

Such a perusal reveals the following factor : (1) The complainant namely, R. Shanmugachandra Vadivu, it is said, underwent family planning operation, i.e., tubectomy after the delivery of the second child on 1.9.1995 as per the policy of the Government in the opposite party''s hospital, namely, Sir Ivan Stedford Hospital, Ambattur. (2) To her shock and surprise she got conceived after sometime and she in fact delivered a female child on 24.4.1998 in the opposite party hospital itself. (3) The conceivement and birth of the 3rd child, the complainant would say was due to the deficiency in service on the part of the doctor attached to the opposite party hospital. To put it otherwise, there was callous negligence in the performance of the tubectomy operation by the doctor attached to the said hospital which resulted in conceivement and birth of a third child to her.

ALLEGING the factors as above, she knocked at the doors of this Commission for certain reliefs as prayed for in the complaint. No materials are placed on record to point out that the opposite party hospital render service for consideration for persons who are capable of paying and also render free service to persons who are incapable of making payment for such services. This apart, no materials are placed by the complainant to point out that she in fact paid fees or charges to the opposite party hospital for the tubectomy operation performed on her by the said hospital.

NO doubt, the Apex Court of this country held "Service rendered at a non-Government hospital/nursing home here charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free of service, would also be "service" and the recipient a "consumer" under the Act vide - III (1995) CPJ 1 (SC)=1995 (3) CPR 412, Indian Medical Association v. V.P. Shantha & Ors. In the case on hand, as already indicated, no material has been placed by the complainant that the opposite party hospital levies charges for patients who are capable of paying and this apart no material had also been placed that she in fact paid charges for the tubectomy operation performed by the opposite party on her. In such state of affairs, it cannot at all be stated that the service rendered by the opposite party hospital would fall within the definition of "service" under Section 2(1)(o) of the Act. This apart, infallible medical opinion is that since the disconnected ends of the fallopian tube are close to each other, there is chance for re-union of those ends resulting in pregnancy notwithstanding the fact that there was no negligence in the performance of the tubectomy operation. It is to be taken note of here that the tubectomy operation is not 100% successful and there will be some failures in such operations in the normal run of things, in the sense of pregnancy occurring even subsequent to such operations. For the reasons as above, the complaint deserves to be rejected in limine and the same is accordingly rejected. Complaint rejected in limine.