IMPORTANT POINT
Tubectomy operation can fail and its failure does not entitle the woman to claim compensation.

Ashok Bhan, President—Appellants which were the Opposite Parties before the State Commission have filed this Appeal against the judgment and order dated 20.08.07 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Complaint Case No. C-71/1998 wherein the State Commission allowing the complaint filed by the Respondent has directed the Appellants to pay a sum of Rs.50,000/- as compensation to the Respondent.

Facts:

2. Briefly stated the facts of the case are that the Complainant’s husband was an employee of Northern Railway and as such she was beneficiary of Railway hospitals located in New Delhi and Ghaziabad. On 19.05.95 she had undergone a sterilization (tubectomy) operation and was operated by Respondent No.4, Dr.(Mrs) Pushpa Mathur (Opposite Party No.4 before the State Commission). In spite of the said operation, she became pregnant in September, 1996 and a caesarean child was born on 10.06.97. Alleging medical negligence on the part of the doctors and the hospital, she filed the complaint before the State Commission seeking compensation.

3. Appellants, on being served, entered appearance and filed their written statement taking the preliminary objection that the complainant was not a ‘consumer’ within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986 (for short, ‘the Act’) as no consideration was paid by her for availing their services. On merits, it was pleaded that at the time of performing tubectomy operation, consent form was signed by the complainant wherein it was specifically mentioned that “ I know that there are some chances of failure of operation for which Government Hospital/operation surgeon will not be held responsible by me or my relatives or any other person, whatsoever and I am also aware that I am undergoing on operation which carries an element of risk”. That operation was performed with due diligence and proper care of the Respondent was taken before and after operation. That the fact that operation involves risk factor was specifically told to the Respondent in advance. That there was no deficiency in service on their part.

4. State Commission holding the doctors and hospital guilty of medical negligence, partly allowed the complaint and directed the Appellants to pay a sum of Rs.50,000/- as compensation to the Respondent.

5. State Commission held:-

“Onus is heavily upon the doctor to show that every care was taken in performing the operation and the case was such that fell within the so called case where chances of failure were more. If we believe the doctor or the hospital that in such operation there is some percentage of failure then every failed case will come within the so called percentage of failure.

In our view, there is strong presumption of medical negligence of the operation if the operation fails. It is not for the complainant to prove the medical negligence but onus was heavily upon the doctor to prove from the medical record that all the care was taken and the fallopian tube was properly knotted.

Failure of such an operation can by no stretch of imagination be attributed as non-observance of instructions by the patient. This operation has to be perfect in all respect. Operation fails when fallopian tubes are taken care of. If a woman does not observe certain instructions after operation, it may affect health but not in the failure of the operation. Such instructions are not for the purpose of avoiding failure of operation. These instructions are only for the health of the woman subsequent to such operation.”

6. Appellants, being aggrieved, have filed the present appeal.

7. We have heard the ld. Counsel for the parties at length.

8. Point in issue as to whether merely because a woman having undergone a sterilization operation becomes pregnant and delivers a child, is entitled to compensation or not is concluded by a judgment of the Supreme Court in State of Punjab v. Shiv Ram & Ors.1, wherein Supreme Court has held th