Decided on November 25,2004



- (1.) THIS appeal has been filed against the order dated 30.1.2003 passed by District Forum, Nalanda in Complaint Case No.54/2000 whereby and whereunder the complaint has been rejected.
(2.) THE brief fact of the case is that appellant -complainant is a married woman having four sons prior to 8.12.1993. There was an announcement on behalf of the respondent of Bandhyakaran, which was scheduled to be held at Rajgir Referral Hospital on 8.12.1993 free of cost, and Rs.135/ - was also to be provided as incentive. The complainant made inquiry and she was told that after the operation she will not bear in child in future. The complainant was having already four children and she was financially not sound, as such, she thought it proper to get herself Bandhyakaran so that in future she should not bear any child. She surrendered herself in the Referral Hospital and she was operated upon by respondent No.1 on O. T. No.211 P. P. No.220. The respondent No.1 is a Govt. doctor and respondent Nos.1 and 2 had promised the appellant that after the operation she will have good health and will have no issue in future. It is alleged that after the operation by respondent No.1 she started health problem and she contacted other doctors for long treatment. She was treated by different doctors and she had to spend about Rs. one lac in her treatment but her condition did not improve. It is further alleged that the complainant's health not only deteriorated after the above operation but she again became pregnant after the operation dated 5.5.2000. She gave birth to a child in Sadar Hospital, Bihar Sharif and had to spend Rs.50,000/ -. The allegation of the complainant is that respondent No.1 carelessly and negligently performed his duty and did not perform Bandhyakaran properly. Therefore, she became pregnant inspite of the operation and several health problems developed. Alleging deficiency on the part of the doctor she filed the complaint with a claim of Rs.3,50,000/ -.
(3.) IN pursuance of the notice O. P. appeared and filed several documents including the copy of the notification of Civil Surgeon, Nalanda. The O. P. admitted that on the basis of National Family Welfare Scheme Bandhyakaran operation was going on in the area free of cost. The Govt. used to pay Rs.135/ - to the person who was operated upon. No charge was levied against the person who was operated upon. It is not denied that complainant was operated. The contention of the O. P. is that in some cases though the percentage is low inspite of the operation the woman again conceives and gives to a child. This is accepted in the medical science and this process is known as fertilization, which takes place inspite of the operation in some of the cases. The complainant may have come under that exception but it was not due to any negligent in her operation conducted by respondent No.1. It was also contended on behalf of the O. P. that no fee was charged from the complainant, therefore, she does not come under the definition of consumer and she has not hired the services of respondent No.1. As such, the complaint is fit to be dismissed. The District Forum after hearing the parties held that complainant did not pay any charge for the alleged operation of Bandhyakaran on her to respondent No.1. On the other hand, she was paid Rs.135/ - after the operation, therefore, does not come under the purview of consumer and accordingly the complaint was dismissed against which this appeal has been preferred.;

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