GAURIDEVI RAMESHWAR SINH vs FAMILY PLANNING ASSOCIATION OF INDIA

THE short yet quite an important question that arises for our consideration in this appeal is "whether a complaint making the grievance that because of negligence on the part of the Medical Officer in performing family planning operation, when the complainant conceived and delivered an unwanted child, burdening her with recurring additional financial liability, that can be made a ground for the cause of action and accordingly the subject matter of the consumer disputes redressal praying for the compensation under the Consumer Protection Act, 1986."

TO briefly narrate the facts of the case, according to the complainant Gauridevi, she had already three children and therefore did not want any more child so as to be further burdened with an additional financial liability and accordingly on 20.12.1988 voluntarily underwent Family Planning operation (sterilization) in the Bapunagar General Hospital, where ultimately she was discharged on 26.12.1988. However, as the misfortune would have been, due to the alleged negligence of the concerned medical officer who performed the operation on 20.12.1988, she, to her utter shock and surprise, subsequently conceived and gave birth to a male child on 14.11.1992. This was duly informed to the concerned medical officer of the Family Welfare Centre, Bapunagar General Hospital, respondent No. 3 herein. But that was of no consequence. Under the circumstances, it is the grievance of the complainant that because of the alleged manifest negligence by the doctor who performed the family planning operation, which in turn speaks for itself, she has been burdened with mental tension and the additional financial liability to rear up her fourth child and that too for no fault of her. On the basis of this grievance, Gauridevi ultimately filed Complaint No. 958 of 1993 before the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad against the respondent Family Planning Association of India and two others claiming compensation of Rs. 1,50,000/- from them with interest, cost etc. On perusal of the record, it appears that the complaint was filed on 2.11.1993 and because of some office objections, the complainant was informed to remove the same by making a suitable amendment in the title and join appropriate parties etc. Accordingly notice was issued to the complainant to comply with the said objection. Thereafter, the learned Advocate appearing for the complainant applied for time to get the necessary information to do the needful in the mater. This was also granted from time to time but for whatever reasons the said objection was not complied with. Under these circumstances, probably feeling quite exasperated by apathetic and annoying attitude of the complainant, the City Forum by an order dated 18th June, 1997 dismissed the complaint at the lodging stage for non-prosecution giving rise to the present appeal challenging the impugned order.

Now, on 19.12.1997, when this appeal came up for admission it was pointed out to the learned Advocate appearing for the appellant that there were some judgments of the Gujarat High Court which has taken the view that such compensation application on the alleged ground of negligence in performing out the family planning operation was not maintainable and accordingly therefore no useful purpose would be served by remanding the matter to the City Forum. Not only that but it was also made further clear that in case, if there were any other decisions of the Supreme Court and or for that purpose of any other High Court taking a contrary view to the view taken by the Gujarat High Court supporting the case of the complainant then they also be brought to the notice of this Commission alongwith the reported decision of the Gujarat High Court which has already taken a view not supporting the case of the complainant. Accordingly on the next given date when on 6.1.1998 the matter was called out, me learned Advocate for the appellant was absent. Thereafter the matter was kept at the bottom of the board to enable the learned Advocate to appear and make submission whatever she wanted to in support of her case. At the end of the board also since the learned Advocate for me appellant did not turn up, we have decided to dispose of this appeal on merits.

WHETHER and when the complaint is dismissed at the lodging stage, merely on the ground of not complying with office objection, appeal lies under Section 15 of the Consumer Protection Act, 1986 challenging the same? Now, this is the basic question going to the root of the appellate jurisdiction of this commission. Accordingly, first of all, before entering into the merits of the case it is required to be clarified that whenever merely on the ground of want of prosecution or say non removal of the office objection if the complaint is dismissed, then, in that case, since the same obviously having not been decided on merits, it is always open to the complainant to once again approach the concerned Consumer Disputes Redressal Forum praying for setting aside the order dismissing the complaint passed against him/ her (removing or giving undertaking to immediately remove and/or comply with the office objection in question) and to restore the same on record to be decided on merits. The reason is such an application being simple restoration application and by no stretch of imagination can it be said to be ''Review'' of the impugned judgment and order, the same always lies before the Consumer Disputes Redressal Forum only which passed the impugned order dismissing the complaint. In this view of the matter, legally speaking ''stricto sensu'' since there was no question or scope for any appeal being filed under Section 15 of the Act challenging the impugned order we would have indeed no difficulty in holding that this appeal is totally misconceived deserving to be summarily dismissed. Anyway, having regard to the facts and circumstances of the case, in particular to protect the interest of the consumer instead of dismissing me appeal, in the overall interests of justice, on the appellant herein showing her readyness and willingness and also giving undertaking before us to immediately remove the office objection, without entering into the technicality we would have unhesitatingly straightway remanded the case to the City Forum directing it to restore me complaint and thereafter proceed ahead with the case and decide the same on merits according to law. But apart this, unfortunately the matter does not and cannot simply rest here and accordingly even if this appeal is allowed remanding the case to the City Forum, permitting the complainant to remove the office objection to take the complaint on the record, then even also it would be simply an exercise in futility and no useful purpose would be served as there is an unsurmountable major hurdle in the way of the maintainability of complaint by virtue of three decisions rendered in (i) case of Bharuch District Panchayat and Ors. v. Kanubhai Raijibhai Patel and Ors., reported in 1996 (1) GLH 584; (ii) First Appeal No. 1480/96 decided on 8.9.1997 by Mr. Justice S.D. Shah, and (iii) First Appeal No. 579 of 1996 decided on 12th August, 1996 (S.D. Shah, J.) wherein the larger issue which is raised in the instant complaint viz. to recover the damages for tortuous liability because of failure of family planning operation is no longer res integra and is directly covered by the aforesaid three judgments. In all these three cases the Gujarat High Court has taken the view that the negligence on the part of the Medical Officer in performing family planning operation is not legally sustainable cause of action entitling the aggrieved to claim compensation on that count. Justice S.D. Shah, while dismissing one of the last two appeals has placed reliance upon the book namely "Operative Obstretrics" (VIIIth Edition) page 686 written by Munoro Karr wherein in Chapter on ''Sterilization'', it has been observed that "No method of sterilization is entirely safe and complete and there are possibilities of failure of operation due to many natural reasons also." Therefore, the pregnancy or fertilization after operation is always not sufficient to jump to the conclusion of negligence on the part of the doctor." We agree. In this view of the clear legal position, we have indeed no alternative left with us but to dismiss this appeal holding that no complaint to recover damages for tortuous liability because of failure of family planning operation is maintainable even before the Consumer Disputes Redressal Forum under the Act. In the result, this appeal fails and is dismissed summarily. Appeal dismissed.