SOU.RAJASHREE MAHADEV KORE vs M.M.REDDY

THE complainant has filed this complaint claiming damages of Rs. 15.00 lakhs with interest and cost alleging negligence against the opposite party (for short, the "O.P.").

THE case of the complainant is as follows : THE complainant due to previous acquaintance with the O.P., approached the O.P. to perform "Tubectomy Operation". THE complainant disclosed the O.P. that she was suffering from incurable disease of "Hemophillia" since long. Accordingly, the O.P. performed the operation of tubectomy on 18.4.1997. THE complainant has paid a sum of Rs. 5,000 towards the operation fee and expenses incurred while she was indoor patient in the Nursing Home belonging to the O.P. THE further case of the complainant is that the O.P. after the operation said that the operation was successful and in future she will not be having any conception. The complainant having come to know during the month of November-December, 1998 that she had conceived rushed to the O.P. and enquired about the reasons for the pregnancy. The further case of the complainant is that the O.P. admitting the fault and negligence advised her to continue with the pregnancy by disclosing that there are lot of medicines available for curing the said disease of Hemophilia in the advanced technology of medical jurisprudence. Accepting the said suggestion, the complainant continued with the pregnancy and subsequently delivered a child on 18.9.1999 in Om Clinic, Akkalkot. The child was subsequently named as "Gowrishankar". Thereafter, the complainant underwent another operation for Tubectomy in the Nursing Home called "Nawal Prasuti and Shusrusha Gruha" at Sholapur on 23.3.1999. According to the complainant, the child born also suffers from the disease of Hemophilia. The complainant has no means of medical treatment for Hemophilia either at Akkalkot or at Sholapur and, therefore, she is required to spend considerable amount to go to Puna for the treatment. Therefore, the complainant has filed this complaint stating that due to the negligence of the O.P. in performing the tubectomy operation she was required to go for another operation and she is made to spend considerable amount for treatment of her third child for Hemophilia.

The O.P. has filed her version disputing the claim of the complainant. The O.P. in her version has stated that the complaint is barred by time and, therefore, it is liable to be dismissed. The further case of the O.P. is that she is a Medical Practitioner for the last 30 years. She admits in the version that she performed the tubectomy operation free of cost on the request of the complainant as she had come to her Nursing Home through known persons. She denies the averment made by the complainant that the complainant had informed that she is suffering from Hemophilia as false. It is further stated in the version that she performed the tubectomy operation in accordance with general and approved practice of profession, taking all due care, caution and with diligence, adopting the modified pomeroy method and there was no complication. But the O.P. denies that she has received Rs. 5,000 towards the fees and expenses. It is further stated that though the operation was done with due care and caution, the complainant was told that in the normal circumstances she would not conceive, but at the same time, she was also put on guard by telling about the instances of young women becoming pregnant, even after such operation due to biological changes in the body and as such she was advised to attend the clinic for check up but she did not visit the clinic as stated by the complainant in her complaint. It is further stated that the O.P. was furnished with the Family Planning Operation Certificate. The O.P. denies the fact that she admitted the negligence and advised the complainant to continue with the pregnancy etc., as alleged in the complaint. She further denies the fact that the complainant and her children are suffering from Hemophilia. The O.P. in her version has stated that the subsequent conceivement was not on account of any failure in the operation performed by her, as the operation was perfect, but could only be due to spontaneous recanalisation during the gap period of 17 to 19 months (biological changes in her body) not within the control of any one and greater fecundity on account of age of the complainant. For the reasons stated in the version, the O.P. submits that she is not liable to pay any damages as claimed by the complainant in her complaint.

THE complainant and the O.P. filed their affidavits in support of their cases and they were subjected to cross-examination. THE parties have not produced any documents by way of evidence in this case. On the above said pleadings, the points that arise for consideration are: (1) Whether the complaint filed by the complainant is barred by time? (2) Whether the complainant proves negligence on the part of the O.P. in performing the operation of tubectomy? (3) To what relief the complainant is entitled?

POINT No. 1 : The complainant underwent the tubectomy operation on 18.4.1997. According to the averments made in the complaint, she came to know of pregnancy during the month of November-December, 1998. The complainant underwent the operation in the Nursing Home belonging to the O.P. at Gulbarga which is in the State of Karnataka. Knowing fully well that the complainant underwent the operation at Gulbarga, she filed a complaint before the Maharashtra State Consumer Disputes Redressal Commission (for short, the "Maharashtra Commission"). The said complaint was withdrawn by the complainant herself reserving liberty for presentation before the appropriate Forum on 27.12.2001. Thereafter, she made another application for extension of time before the Maharashtra Commission to file a complaint before this Commission. On that application, time was extended by the Maharashtra Commission by six weeks from the date of the earlier order, i.e., 27.12.2001. Thereafter, the complainant has filed this complaint before this Commission on 25.11.2002. The complainant knowing fully well that she was operated in the State of Karnataka as the Nursing Home where she was operated is situated in the State of Karnataka ought not to have filed the complaint before the Maharashtra Commission. The Maharashtra Commission has not dismissed the complaint on the ground of jurisdiction. The complaint filed by the complainant before the Maharashtra Commission was withdrawn by herself seeking permission to present it before the appropriate Forum. Further, the complaint filed before this Commission is after the expiry of the extended period of six months from 27.12.2001. From these facts it cannot be said that the complainant was prosecuting the case in the wrong Forum in the Maharashtra State. Therefore, we are of the view that the complaint filed by the complainant after about five years from the date of operation is barred by time. Though the complaint is liable to be dismissed on the ground of limitation, we propose to consider the case of the complainant on merits. Point No. 2 : The complainant in her complaint has stated that the O.P. after performing the tubectomy operation on 18.4.1997 informed that the operation was successful and there was no scope for any further conceivement. This averment has been denied by the O.P. in her version and also in her affidavit. According to the O.P. she had not informed the complainant about the chances of conceivement subsequent to the operation. But, on the other hand, the case of the O.P. is that she had informed orally the complainant that in the normal circumstances she would not conceive but, at the same time, she was put on guard by telling about the instances of young women becoming pregnant. The complainant in her cross-examination stated that "no damage has been caused on account of the tubectomy operation and the operation went on well". From this it is seen that so far as the operation of tubectomy is concerned, the complainant herself admits that the operation went on well and, therefore, no negligence can be attributed to the O.P. in the performance of tubectomy operation. The further case of the complainant is that she had informed the O.P. that she was suffering from Hemophilia since long and her first two children are also suffering from the same disease. This fact is denied by the O.P. In order to show that the complainant and her first two children and the subsequent born children by name Gowrishankar were suffering from Hemophilia, no evidence has been produced by the complainant. If really the complainant and her children are suffering from the said disease, she could have produced some Medical Certificates in proof of her contention, especially when the fact that they are suffering from Hemophilia was seriously disputed by the O.P. Therefore, we are of the view that the complainant failed to prove that she and her children were suffering from Hemophilia.

THE complainant was operated by the O.P. for tubectomy on 18.4.1997. In the complaint, the complainant states that she came to know of the pregnancy in the month of November-December, 1998, whereas in her cross-examination she states that she became pregnant three years after the tubectomy operation. This statement is inconsistent with the averment made in the complaint. According to the complainant, she approached the O.P. when she conceived subsequent to the tubectomy opertion and she was advised to continue with the pregnancy on the ground that Hemophilia disease can be cured due to the advanced technology of medical jurisprudence. This fact is denied by the O.P. both in the version and also in her evidence. THE complainant having accepted the advice given by the O.P. is estopped from contending that there is any such negligence on the part of the O.P. As stated earlier, so far as the tubectomy operation is concerned, the complainant herself admits that the operation went on well. So far as the advice said to have been given by the O.P. to the complainant to continue with the pregnancy is concerned, the same is denied by the O.P. THE complainant has not produced any evidence in proof of her statement that she approached the O.P. subsequent to November-December, 1998 and she was advised by the O.P. to continue with the pregnancy. Assuming that the O.P. has given such an opinion, the complainant should have taken a second opinion, if she was so conscious that the disease of Hemophilia that she was suffering might be inherited by her third child and could have taken steps to get aborted the pregnancy. But, in the instant case, no such steps were taken by the complainant to get aborted the pregnancy.

THE O.P. in her version has stated that the subsequent conceivement was due to spontaneous recanalisation during the gap period of 17-19 months (biological changes in her body) not within the control of any one and greater fecundity on account of age of the complainant. THE same view has been reiterated by the O.P. in the affidavit filed by her. In order to disprove this fact the complainant has not produced any expert evidence to show that there would not have been any conceivement in the event if a person undergoes tubectomy operation. In the absence of such expert evidence, there is no reason to disbelive the evidence of the O.P. regarding the conceivement, if any, due to biological changes in the body subsequent to the tubectomy operation. The complainant had given birth to her two children in the Nursing Home belonging to the O.P. The tubectomy operation was also conducted by the O.P. in her Nursing Home. The complainant had not complained whatsoever in so far as the first two children are concerned. If really the complainant was suffering from Hemophilia and the same has been inherited by her first two children, she could have insisted either the O.P. or any person for abortion of the third pregnancy. But, in the instant case, as stated earlier, no such steps were taken by the complainant.

In the absence of any evidence adduced by the complainant to prove negligence against the O.P., we are of the view that the complainant has filed this complaint only to harass the O.P. and for a wrongful gain.

POINT No. 3 : In the circumstances stated above, we are of the considered view that the complainant is not entitled for any relief. For the reasons stated above, we are of the considered view that the complaint is liable to be dismissed.

HENCE, we pass the following order : The complaint is dismissed. Complaint dismissed.