SUSHMA DEVI vs BALGOBIND BISWAS

THIS appeal has been filed against the order dated 30.1.2003 passed by District Forum, Nalanda in Complaint Case No. 54/2000 whereby and whereunder the complaint has been rejected.

THE brief fact of the case is that appellant-complainant is a married woman having four sons prior to 8.12.1993. THEre was an announcement on behalf of the respondent of Bandhyakaran, which was scheduled to be held at Rajgir Referral Hospital on 8.12.1993 free of cost, and Rs. 135/- was also to be provided as incentive. THE complainant made inquiry and she was told that after the operation she will not bear in child in future. THE complainant was having already four children and she was financially not sound, as such, she thought it proper to get herself Bandhyakaran so that in future she should not bear any child. She surrendered herself in the Referral Hospital and she was operated upon by respondent No. 1 on O.T. No. 211 P.P. No. 220. THE respondent No. 1 is a Govt. doctor and respondent Nos. 1 and 2 had promised the appellant that after the operation she will have good health and will have no issue in future. It is alleged that after the operation by respondent No. 1 she started health problem and she contacted other doctors for long treatment. She was treated by different doctors and she had to spend about Rs. one lac in her treatment but her condition did not improve. It is further alleged that the complainant''s health not only deteriorated after the above operation but she again became pregnant after the operation dated 5.5.2000. She gave birth to a child in Sadar Hospital, Bihar Sharif and had to spend Rs. 50,000/-. THE allegation of the complainant is that respondent No. 1 carelessly and negligently performed his duty and did not perform Bandhyakaran properly. THErefore, she became pregnant inspite of the operation and several health problems developed. Alleging deficiency on the part of the doctor she filed the complaint with a claim of Rs. 3,50,000/-. In pursuance of the notice O.P. appeared and filed several documents including the copy of the notification of Civil Surgeon, Nalanda. The O.P. admitted that on the basis of National Family Welfare Scheme Bandhyakaran operation was going on in the area free of cost. The Govt. used to pay Rs. 135/- to the person who was operated upon. No charge was levied against the person who was operated upon. It is not denied that complainant was operated. The contention of the O.P. is that in some cases though the percentage is low inspite of the operation the woman again conceives and gives to a child. This is accepted in the medical science and this process is known as fertilization, which takes place inspite of the operation in some of the cases. The complainant may have come under that exception but it was not due to any negligent in her operation conducted by respondent No. 1. It was also contended on behalf of the O.P. that no fee was charged from the complainant, therefore, she does not come under the definition of consumer and she has not hired the services of respondent No. 1. As such, the complaint is fit to be dismissed.

The District Forum after hearing the parties held that complainant did not pay any charge for the alleged operation of Bandhyakaran on her to respondent No. 1. On the other hand, she was paid Rs. 135/- after the operation, therefore, does not come under the purview of consumer and accordingly the complaint was dismissed against which this appeal has been preferred.

AS per pleadings of the parties most of the facts are admitted. The complainant submitted for her Bandhyakaran operation at Rajgir Referral Hospital on 8.12.1993 where she was operated upon free of cost. It is the case of the complainant that it was a ''Shivir'' at Referral Hospital and as per Govt. Schemes female were operated free of cost and they were also paid Rs. 135/- as incentive. It is not in dispute that complainant had four sons before the operation. This fact is not challenged by respondent that after the operation on 8.12.1993 she again conceived and gave birth to a child in Sadar Hospital, Bihar Sharif. The complainant alleged negligence and deficiency in service against the Surgeon who operated upon her. Originally, the complaint was filed against Dr. Bal Govind Biswas who was in charge of the Referral Hospital and it is said that he performed the operation on her. O.P. No. 2 is the Civil Surgeon of Nalanda District. O.P. No. 3 is the Health Department, Govt. of Bihar. During the course of hearing of the appeal, it was submitted that Dr. Bal Govind Biswas has since dead and on his place Dr. Syed Iqbal Raza has joined and he in person appeared before the State Commission and also filed a written petition stating therein that the allegation of negligence and deficiency in service was made against the operating surgeon who is since dead, therefore, the complaint is fit to be dismissed on this ground also because he has joined in his place in his official capacity and he has not performed the operation on the complainant. The District Forum dismissed the complaint on the ground that the operation was performed by deceased doctor free of cost under the Bandhyakaran scheme. The complainant has not paid any service charge to the doctor, therefore, under the Consumer Protection Act she has not hired the services of the doctor for performing the operation. Hence, the complaint was not maintainable and on this ground, it was dismissed.

DURING the course of argument the learned respondent No. 1 placed before us the photocopy of Text Book of Obstetrics written by Dr. D.C. Dutta and he drew our attention to chapter-35 page 569 where it is mentioned that "failure rate-the overall failure rate in tubule sterilization is about 0.7%, the pomeroy''s techique being the lowest 0.1-0.3% in contrast to the meddler being 1.5-3%. The failure rate is also increased when it is done, therefore, vaginal route rather than abdominal approach or it is done during caesarian section". The respondent No. 1 further placed the photocopy of Text Book of Gynaecology by Dr. P.A. Dubidric and Dr. Daftari and attention was drawn to page 231 where it is mentioned that "the operation is performed through small supra public incision-pomeroy method which is most popular technique of tubaligation ...... as failure rate only 0.4% and it is mainly due to spontaneous canalization". From the medical references referred to above and on the basis of several case law it is by now settled law that after MTP and sterilization in some cases the woman became pregnant. It happens because the uterine end of the tube may develop a fistula with the peritomiel cavity permitting spurn to pass. Risk is inherent in the procedure of female sterilization resulting in pregnancy. It cannot be obviated despite due to care and caution, no proof of negligence merely because the procedure has failed and after the sterilization, the patient again became pregnant. In absence of any definite evidence of negligence, it is settled law that in such cases of failure doctor is not liable. In this case, it is not alleged that doctor who performed the operation was not possessing the skill and knowledge to perform such operation. He was a qualified doctor posted in the Govt. Hospital. It is not alleged that he did not adopt the techique, which was prevalent at that time during such operation. There is also no expert opinion or evidence to prove that he performed his duty of operation carelessly, negligently and he was deficient in his service. Except the allegation of the complainant, there is no material on record to substantiate this grave allegation against the doctor. The Medical Books referred to above have mentioned that there are chances of failure and even after operation of sterilization on a woman in some cases, she again became pregnant. This will not lead to the conclusion that doctor was guilty in performing the operation and he performed the duty negligently. In the off quoted principles of Gynaecology by Sir Norma Jeffcoate it has been observed as under : "no method, however, is absolutely reliable and pregnancy is reported after sub-total and total hysterectomy and even after hysterectomy with bilateral saplingectomy such thing occurs in rare cases due to persisting communication between the ovary or tube and vaginal volt". In the famous handbook published by National Planning Federation, it is mentioned at page 182 "all occlusion method have a failure rate, however, slight, and these pregnancy carry a high risk of being ectopic".

THE above extracts from reputed medical texts clearly prove that risk of failure is inherent in female sterilization. That risk cannot be obviated despite due to care and caution. Risk of failure, being a risk inherent in the procedure and, therefore, it cannot be said that doctor was in any way guilty of negligence merely because the procedure has failed. As such assuming that sterilization failure took place in the case of the complainant in the present case, it cannot be said that same is indicative of any negligence on the part of the O.P.-respondent.

IN the result, in our opinion, the complaint filed by the complainant and the appeal thereafter is devoid of substance and the same merits dismissal. Accordingly, the same is dismissed and the order of the District Forum is hereby confirmed. The parties shall bear the respective cost of litigation. Appeal dismissed.