PUSHPABAI Vs. S JOSEPH

JUDGEMENT

(1.) This is a complainant's appeal against the order dated 31.12.1997 passed in Case No.31/97 by the District Consumer Disputes Redressal Forum, Dewas (for short the 'district Forum' ).

(2.) Facts giving rise to this appeal are thus : The appellant is a house-wife of the financially stringent family who had already three children, two sons and one daughter, therefore, approached the respondent on 21.12.1993 for Tubectomy (T. T.) operation. Though, the respondent runs his own clinic, but, as the complainant gave her application and consent letter on 21.12.1993 of T. T. operation in the Family Planning Programme undertaken by the State Government, the T. T. operation was performed by the respondent and a certificate was issued by the Block Medical Officer. The appellant after the certificate got all benefits/advantages of the T. T. operation. The appellant alleged that due to negligence of the respondent the operation was unsuccessful as she conceived and gave a birth to an unwanted female child on 5.9.1995. The appellant is a poor lady and could not bear the additional economic burden for bringing-up the child, therefore, she had chosen to be operated upon sterilisation. Therefore, for the deficiency in service the appellant claimed compensation of Rs.4,50,000/-. The complaint was resisted. It was submitted that the operation was performed free of charge in the Family Planning Programme undertaken by the Government of Madhya Pradesh. The complainant got the certificate and all the benefits which are being given to the persons who get themselves operated in the Family Planning Programme. There was no negligence on the part of the respondent. In such operations, there may be a failure 1:70 procedures and from such failures pregnancy is not preventable which may occur. The District Forum after appreciation of evidence held that the appellant has not made any averment in the complaint filed on 23.7.1997 that an amount of Rs.2,000/- was paid as consideration for operation. It is only in the affidavit dated 19.12.1997 the appellant made an allegation of payment of fee while the appellant's husband in his affidavit dated 23.7.1997 has also not made any averment on oath that the free or consideration of Rs.2,000/- or any other amount was paid. The appellant belongs to a poor family, hence, how she would bear the expenditure of Rs.2,000/- when the operations are performed in the Family Planning Programme undertaken by the Government of Madhya Pradesh in the Government Hospitals free of charge. In such circumstances as no consideration was paid the appellant was not a consumer as defined under Sec.2 (1) (d) (ii) of the Consumer Protection Act, 1986 (for short the 'act' ). Besides even assuming the appellant paid some consideration or fee, the appellant has failed to establish any negligence by producing expert evidence to record a finding of deficiency in service, hence, dismissed the complaint.

(3.) We have heard Mr. Kamal Verma, learned Counsel for the appellant and Mr. M. S. Chouhan, learned Counsel for the respondent.