IMPORTANT POINT
Basis of liability of a Professional in tort is negligence.

Dr. B.C. Gupta, Presiding Member—This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 15.01.2007, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Appeal No. 945/2006, “Medical Superintendent, ESI Hospital, Delhi Vs. Ram Avadh Pal” vide which, while dismissing the said appeal, the order dated 11.08.2006, passed by the District Forum, East Delhi in consumer complaint No. 395/2006, filed by the present respondent, allowing the said complaint, was upheld.

2. Briefly stated, the facts of the case are that the wife of the complainant Ram Avadh Pal gave birth to a female child at ESI Hospital, Jhilmil Colony, Vivek Vihar, Delhi on 14.05.2001. After the said birth, the wife of the complainant had undergone sterilisation operation at the same Hospital, which was performed by a team of doctors, Dr. Deep Shikha and Dr. Pooja under the supervision of two specialists. A sterilisation certificate was issued to the patient vide certificate No. 226176, Code No. 78/AB dated 15.05.2001. It is stated that after some time, when the complainant’s wife visited the Indira Gandhi ESI Hospital, Jhilmil Colony, Delhi for check-up on 26.09.2005, she was found to be carrying advance pregnancy for 32-34 weeks approximately. Subsequently, she gave birth to a female child on 06.10.2005 at Aashirwad Nursing Home, Pratap Vihar, Ghaziabad, UP. It has been alleged by the complainant that they were a poor family, having meagre income and they could not afford any other child. With that purpose in mind, the wife of the complainant had got the sterilisation operation done in the year 2001, but it was a matter of great shock and mental agony for them to get another child. Alleging medical negligence against the ESI Hospital and its doctors, the complainant filed the consumer complaint in question, seeking directions to the petitioners/OPs to compensate the complainant to the tune of Rs.7.5 lakhs.

3. The District Forum, after taking into account the averments of the parties, allowed the complaint and directed the OPs to pay a sum of Rs.70,000/- to the complainant as compensation and cost of litigation. Being aggrieved against the said order, the petitioners/OP challenged the same by way of an appeal before the State Commission. The said appeal, having been dismissed vide impugned order, the petitioner/OP ESI Hospital is before this Commission by way of the present revision petition.

4. During arguments, the Ld. Counsel for the petitioner ESI Hospital mentioned that there had been no negligence on the part of the doctors at their Hospital in performing the sterilisation operation upon the wife of the complainant in the year 2001. In fact, the doctors at the petitioner Hospital had cut pieces from both the Fallopian tubes, as evidenced from the histopathology report, issued by the Institute of Histopathology, New Delhi. The Ld. Counsel pointed out that the doctors had taken due care and caution to ensure that the pregnancy does not occur again and they had used the best available technique available to them for performing the operation. However, the pregnancy had occurred almost 4 years after the said sterilisation operation, which could not be attributed to any negligence on their part. The Ld. Counsel has drawn attention to an order passed by the Hon’ble Supreme Court of India in “State of Punjab vs. Shiv Ram & Ors.” [2005 VII AD (SC) 393], in which, the medical literature on the issue had been discussed in great detail, and it was brought out that none of the procedures carried out for sterilisation could guarantee 100% exclusion of pregnancy. Although both Fallopian tubes had been cut, but with the passage of time, there was a possibility that the tubes would have got reconnected in natural course. The Ld. Counsel argued that since they had performed to their level best, there was no case of medical negligence made