IMPORTANT POINT
For an unsuccessful operation for medical termination of pregnancy where doctor had conducted operation without any apparent negligence, consumer complaint was not maintainable by virtue of Section 8 of Medical Termination of Pregnancy Act.

B.B. Vagyani, President - This appeal filed by org. O.P. is directed against the order dated 09/04/1997 in Complaint No. 56/1995 passed District Consumer Forum, Dhule.

In brief the facts giving rise to this appeal are as under:-

The respondent-org. complainant conceived pregnancy. The complainant had children. Therefore she wanted to terminate the pregnancy. The complainant therefore approached the appellant. The appellant is qualified Gynaecologist and Obstetrician. The appellant has 15 years experience as Gynaecologist and Obstetrician. The Hospital of the appellant is recognised by the Govt. of Maharashtra as a Centre for termination under Medical Termination of Pregnancy Act, 1971(hereinafter referred to as ‘MTP Act’).

The complainant visited the Clinic of the appellant on 13/6/1995. The complainant was less than 8 weeks pregnant. The complainant was admitted in the Hospital of the appellant on 14/6/1995 and surgical procedure was adopted to terminate the pregnancy by D.E. & C. method and Tubectomy operation was performed. The complainant visited the Hospital on 1st July 1995 with the complaints of loose motion and vomiting and abdominal pain. On clinical examination, it was found that there was failure in the termination of pregnancy and therefore sonography was advised. Accordingly, sonography was done and pregnancy was found continued. It was 10 weeks pregnancy. The appellant immediately informed the complainant about true position and advised her to re-termination of pregnancy. The appellant told the complainant that the re-termination of pregnancy would be done free of cost including medicine. The complainant and her husband were also told that they could choose any other Gynaecologist for re-termination of pregnancy upon which the appellant would pay the medical expenses that would be incurred by the complainant and her husband. The complainant however, chose to continue the pregnancy and delivered the baby on 09/01/ 1996.

The complainant filed Consumer Complaint No. 56/95 before District Consumer Forum, Dhule alleging negligence on the part of the appellant in MTP Procedure and sued the appellant for damages of Rs. 4,99,000/-. The appellant opposed the complaint by filing written statement. Along with written statement a separate application was filed and thereby the very maintainability of the complaint was seriously challenged.

The Forum below after having heard the legal submissions advanced at the Bar came to the conclusion that the complaint is maintainable and the Consumer Forum has jurisdiction to adjudicate the complaint.

Feeling aggrieved by the order passed by the District Consumer Forum, Org. O.P. has come up in appeal. We heard Mr. Y.C. Naidu, Advocate for the appellant-Org. O.P. and Mr. Kiran Patil, Advocate for the respondent-Org. complainant at length. It is admitted fact that the appellant has sufficient experience as Gynaecologist and Obstetrician. It is admitted position that the appellant on 14/6/1995 terminated the pregnancy of the complainant by D.E. & C. method and Tubectomy operation was performed. It is also not disputed that there was failure in terminating the pregnancy medically. The pregnancy was continued and ultimately the complainant delivered a baby on 09/01/1996.

The provisions regarding termination of pregnancy in the Indian Penal Code, which were enacted about a century ago were drawn up in keeping with the then British Law on the subject. Abortion was made a crime for which the mother as well as the abortionist could be punished except where it had to be induced in order to save life of the mother. It has been stated that this strict law has been observed in the breach in a very large number of cases all over the country. The Doctors have often been confronted with gravely ill or dying pregnant woman whose pregnant uterus has been tempered with a view to causing an abortion and consequently suffered very severely. There is thus avoidable wastage of the mother's health and some time