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 ₹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 ₹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 out against the petitioner and hence, the consumer complaint should have been dismissed.

5. The respondent, who appeared in person stated that the concurrent findings of the consumer fora below should be upheld, as they were in accordance with law.

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6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

7. The basic issue that needs consideration in the matter is whether there has been any negligent act on the part of the doctors, who performed the sterilisation operation on the wife of the complainant in the year 2001, that resulted in her getting pregnant in the year 2005. A perusal of the copies of the medical record/notes brought on file, shows that in one of the medical sheets, it is stated as under:-

"UAAP parts cleaned and draped. P/A uterus 18-20 WKS-vertical RT- Paramedion incision given on abdomen wall, Extended to all layers. Both tubes sought, ligated and cut by modified Pomeray's technique. Abdomen closed in layers, Patient stood the procedure well."

8. In the memo of revision petition before us, it has been stated that on the basis of consent from the complainant and his wife, Post-Partum Sterilisation (PPS) was done. The procedure was done by Dr. Pooja under the supervision of Dr. Deep Shikha Sharma and two specialists, who were present in the operation theatre. The most favoured technique of modified Pomeroy's method was used and pieces of Fallopian tubes were cut. There was no negligence or carelessness in performing the surgery.

9. It has further been stated in the memo of revision petition that as per the text books on Obstetrics & Gynaecology, the occurrence of the pregnancy after sterilisation, may be attributed to natural failure. The medical science recognises failure of sterilisation to the extent of 0.3% to 3%, but the consequence of such failures can promptly be taken care of by pregnant woman by undergoing abortion. The wife of the complainant could have taken steps to get the pregnancy terminated, if she did not want another child.

10. In the judgment given by the Hon'ble Supreme Court in "State of Punjab vs. Shiv Ram & Ors." (supra)", the medical literature on the subject has been discussed in detail. It has been stated, interalia, as follows:-

"10. In Jeffcoate's Principles of Gynaecology, revised by V.R. Tindall, MSc, MD, FRCSE, FRCOG, Professor of Obstetrics and Gynaecology, University of Manchester (5th Edn.) published by Butterworth Heinemann, the following techniques of female sterilisation are stated:

"Female Sterilisation Techniques

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1. Radiotherapy …………….

2. Removal of the ovaries ………….

3. Removal of the uterus ………..

4. Resection of fallopian tubes Provided the pelvic organs are healthy, one of the best methods is to remove 1-2 cm of the middle of each tube and to bury the ligated ends separately under the peritoneum. Sometimes the cornua of the uterus are excised, together with the adjacent portions of the tubes. Excision of the whole of both tubes is not so safe because it leaves the ovum free to wander into a possible uterine fistula and fimbriectomy should never be performed. Retention of the abdominal ostia is an advantage for it tends to ensure that the ova become trapped in the occluded tubes.

Of the more simple operations on the fallopian tubes the best is the Pomeroy procedure in which a loop of tube is excised and the cut ends secured with a ligature. This method has the advantage of avoiding troublesome haemorrhage which can attend the techniques described above, requires only limited access, is speedy, and fails in not more than 0.3 per cent of cases. The technique of crushing and ligation of the tubes without excising any part of them (Madlener operation) is very unreliable, the failure rate being 3.0 per cent; it is rarely practised now."

11. It has further been stated in the said judgment as follows:-

"16. In Medico-legal Aspects in Obstetrics and Gynaecology, edited by three doctors, Chapter 18, deals with medico-legal problems in sterilisation operations. It is stated therein that there are several methods of female sterilisation of which one that will suit the patient and the surgeon/gynaecologist should be selected. In

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India, Pomeroy's method is widely practised. Other methods include Madlener's, Irving's, Uchida's methods and so on. The text further states that failure is one of the undesirous outcomes of sterilisation. The overall incidence of failure in tubectomy is 0.4 per 100 women per year. The text describes the following events wherefrom sterilisation failure usually results"

12. As stated already, in the present case, the doctors used the Pomeroy's Method for the sterilisation operation and removed pieces from each of the Fallopian tubes. The medical literature quoted above indicates that this is the most commonly used technique in India, but even in this technique, the failure rate is 0.3%. The fact remains, therefore, that none of the methods used for sterilisation can be stated to provide a 100% guarantee that pregnancy will not occur again. It is clear, therefore, that if the wife of the complainant became pregnant after 4 years of the sterilisation, it cannot be attributed to any negligence on the part of the doctors or the hospital in any manner.

5. The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon'ble Supreme Court and this Commission from time to time. An order passed by the Hon'ble Supreme Court in "Jacob Mathew v. State of Punjab [(2005) 6 SCC 1]" has been quoted in the order of the Hon'ble Apex Court in "State of Punjab vs. Shiv Ram & Ors." [supra]". The principles laid down in the said order say that the basis of liability of a professional in tort is negligence. Unless that negligence is established, the primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, the vicarious liability on the State cannot be imposed. It is evident, therefore, that the direction given by the Consumer Fora below to the Petitioner/OP for providing compensation to the complainant was not justified in accordance with law, as medical negligence has not been established by any evidence on record. It may also be noted here that even in the consumer complaint, it is stated that the complainant was aggrieved on account of the fact that another child was born to his wife, despite sterilisation procedure having been done 4 years back and being a poor family, they were not in a position to afford the same. They have, however, not pointed out anywhere that any negligent act was performed by the treating Doctors or the Hospital in giving treatment to the patient. Moreover, they have also not explained anywhere whether they ever thought of terminating the pregnancy, if they did not want or afford to have an additional child.

6. Based on the foregoing discussion, it is made out that the orders passed by the Consumer Fora below are perverse in the eyes of law, because liability for giving compensation has been fastened upon the OPs, although negligence on their part has not been proved. This revision petition is, therefore, allowed and the orders passed by the Consumer Fora below are set aside. The consumer complaint, in question, stands dismissed. There shall be no order as to costs.

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DR. B.C. GUPTA

PRESIDING MEMBER

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PREM NARAIN

MEMBER

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