Kamla Kesharwani vs Supdt., Shyamshah Medical College And Gandhi Memorial Hospital And Ors.

THIS revision petition has been filed with a delay of 67 days, for which reasons given is that the petitioner being a poor lady and does not have sufficient funds and hails from Madhya Pradesh and therefore this delay has been caused. The reasons given are neither convincing nor proper. Though this case can be dismissed on the grounds of delay alone, we have decided to hear this case on merit.

IN this case, the District Forum after hearing the parties, awarded a sum of Rs. 75,000 as compensation to be paid by the opposite parties along with Rs. 1,000 as cost. Aggrieved by the order of the District Forum, the petitioner had filed an appeal for enhancement of compensation and the Government of Madhya Pradesh, Supdt., Shyamshah Medical College and Gandhi Memorial Hospital and Ors., had filed appeals for dismissing the complaint and allowing their appeal. The State Commission dismissed the appeal of the complainants and allowed the appeals of others. Hence, this revision.

HEARD the learned Counsel for the petitioner. He submits that an admission fee of Rs. 5 and fee to the tune of Rs. 70 for the surgery of D and C as well as for Tubectomy were charged by the respondent hospital, even then, the petitioner -complainant gave birth to a fourth child. The learned Counsel for the petitioner submitted that D and C was performed on the patient on 27.11.2004 and the receipt shows LR i.e., admission fee for the Labour Room and no fees for the D and C or MTP (Medical Termination of Pregnancy) or for Tubectomy (LTT).

LEARNED Counsel for the petitioner submitted that the Government Hospital liberally charged the patient at Rs. 70 as it is the policy of the Government to control population. He further submitted that he had consulted Dr (Smt.) Shailbala Srivastava who charged total consultation fee of Rs. 100 before the operation and after the operation also. He further submitted that the District Forum''s order may be upheld and the compensation awarded may be increased as per the prayer made in the complaint and the order of the State Commission may be set aside.

IT is clear that Tubectomy surgery was performed in the Government Hospital and by no stretch of imagination it could be held that Rs. 70 was charged for both D and C as well as for Tubectomy, as Rs. 70 was paid only for Labour Room. Petitioner has paid Rs. 100 as consultation fee to the doctor for two consultations and no deficiency has been alleged about the advice given during the consultation at the residence of the doctor.

THE Hon''ble Apex Court in Indian Medical Association v. V.P. Shantha and Others, III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=(1995) 6 SCC 651, has held as under: "As regards the expression free of charge'' in Section 2(1)(o) it must be held that the medical practitioners, Government hospitals/ nursing homes and private hospitals/ nursing homes (hereinafter called doctors and hospitals''), who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of service'' under Section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would, however, not alter the position in respect of such doctors and hospitals."

In a subsequent judgment, the State of Punjab v. Shiv Ram and Others, IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=III (2005) ACC 717 (SC)=AIR 2005 SC 3280, it was held as under: "The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground of claim. It is for the woman who has conceived the child, to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed".

"The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3(2), Expln. II provides that if the women has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy, Act, 1971."

IN a catena of judgments of this Commission it has been held that there is no guarantee that child -birth will not take place after Tubectomy operation. There is certain known percentage of failures in all case of Tubectomy operations and this has been explained in the medical texts which have been quoted in the judgments of this Commission. In this connection we would like to refer to the judgments of this Commission in II (2008) CPJ 125 (NC)=RP No. 3049 of 2008 (19.12.2008), RP No. 4466 of 2008 (19.12.2008) and I (2009) CPJ 192 (NC)=RP No. 2135 of 2008 (3.12.2008).

HENCE , we do not see any material irregularity or jurisdictional error in the order passed by the State Commission warranting our intervention under Section 21(b) of the Consumer Protection Act 1986. Accordingly, this revision petition is dismissed. However, there shall be no order as to cost.