KALPANA TRIPATHI Vs. VIDYAWATI DEVI

JUDGEMENT

(1.) HEARD Mr.M.H. Khan, learned Counsel for the appellant and Mr. R.K. Gupta, learned Counsel for the respondents and perused the record.

(2.) THE impugned judgment dated 20.12.2001 of the District Consumer Forum, Deoria has been subjected to challenge by way of this appeal on the ground that it was not a consumer dispute between the parties as the facility of tubectomy was provided to the complainant under the U.P. Government Family Planning Scheme free of cost. The contention seems to be sustainable. Dr. Kalpana Pant @ Dr.Kalpana Tripathi had conducted tubectomy upon the complainant Smt Vidyawati Devi on 28.10.1998 in the Women Hospital, Deoria without realizing any fees. The complainant has not rebutted this averment of the appellant. In her complaint also she has not stated that she paid any fees for her sterilization. In this situation the services having been hired without any consideration, would not attract the provisions of the Consumer Protection Act. A deficiency in service which is hired on payment of consideration is actionable but the one which has been availed of free of cost does not entitle the claimant to raise a consumer dispute. This view point finds valuable support from a decision of the Hon'ble National Commission in Esakkimuthu v. P. Dhanam (DR.), 2008 1 CPJ 130

(3.) MOREOVER , the methods of sterilization are not hundred percent safe. In respect of the operation having been successfully performed and without any negligence on the part of the surgeon the sterilized women can become pregnant due to natural causes. There may be a minor percentage of failure of tubectomy operation by way of fallopian tubes being blocked. The Hon'ble National Commission in the judgment referred to above has observed that once the woman misses menstrual cycle it is expected of the couple to visit the Doctor and seek medical advice. If a woman has suffered from unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.