MCC 02BEFORE THE

HONBLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

At

NEW DELHIIN THE MATTER OF TANIA KEJRIWAL(Appellant)

Vs.

1. DR. SAMTHA MAJHI2. DR. SOMDUTTA3. THE SWISS PARK HOSPITAL at KOCHI through MANAGEMENT(Respondent)

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MEMORIAL ON BEHALF OF THE APPELLANT---------------------------------------

2011TABLE OF CONTENTS

Table of Content.01 List of Abbreviation02Index of Authorities03Statement of Jurisdiction04Statement of Facts...05Issues Raised...06Summary of Pleadings07Pleadings..08-09Prayer for Relief..10LIST OF ABBREVIATIONS

Art. Article

AIR All India ReportersSC Supreme Court

Hon HonourableMTP Medical Termination of Pregnancy

INDEX OF AUTHORITIES

BOOKSUniversal Publication, Consumer Protection Act 1986

Jiaswal J.V.N., Legal Aspects of Pregnancy, Delivery and Abortion

Rao Y.V., Law Relating to Medical Negligence, 2nd Edition

STATEMENT OF JURISDICTIONThe appellant has approached the Honourable court under section 19 of the Consumer Protection Act of 1986 which is stated as under

Section 19: Appeal

Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form

The appellant also approaches the Honourable court under section 21(a) part (ii) of the Consumer Protection Act 1986 which is stated as under - Section 21: Jurisdiction of the National Commission

Subject to the other provisions of this Act, the National Commission shall have jurisdiction-

(a) To entertain-

(i) Complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees 1, 00, 00,000(One Crore); and

(ii) Appeals against the orders of any State Commission.(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

STATEMENT OF FACTS

The petitioner is resident of Kochi and married to Rajiv Kejriwal. In October 2000 Rajiv and petitioner got married and within 22 months, petitioner gave birth to a child in August 2002. Just two months later that is in December 2002 petitioner approached respondent no.1 working at the Swiss Park Hospital, Kochi to examine for her pregnancy. After several examinations, it was found that petitioner was pregnant. Knowing about the medical history of the petitioner, respondent no.1 advised the couple to medically terminate the pregnancy as soon as possible to avoid later strain and medical illness later. As advised, the couple reached the hospital for medical termination of pregnancy. The procedure of termination of pregnancy included various medical practises and steps. Thus, on the first day of the process that is on 9/10/2002, respondent no.1 inserted an instrument called Laminaria Tent into petitioner to dilate the cervix which is general medical practise in process such as this of abortion. On the other day of the process that is on 10/10/2002, respondent no.1 was accompanied by respondent no.2 who is a lady gynaecologist. Both respondent no.1 and no.2 took the petitioner in the labour room for the termination of pregnancy. Around one hour later respondent no.2 reached to Rajiv and informed him that due to few complications during the termination of pregnancy, petitioner has started to bleed profusely which may be harmful to petitioners life and to avoid death they have to conduct an operation. In due confusion, Rajiv permitted the respondents to proceed with the operation. Later, when the operation ended, respondent no.1 informed that petitioner was safe, but her uterus had to be removed. Due to the removal of the uterus, petitioner had to face several hormonal complications and mental stress that she could not conceive again. ISSUE RAISEDI

Whether Rajiv (on behalf of the appellant) was informed about the procedure involved in operation, such as removal of organ (uterus), and its consequences conducted by the respondents?

II

Whether deficiency existed in the deliverance of Medical Service, such as Medical termination of Pregnancy, on the part of the Respondents?

III

Whether the appellant suffered from physical injury/damage/ deterioration, due to deficiency in medical service delivered by the respondents?

IVWhether the appellant suffered from mental injury/damage/deterioration, due to deficiency in medical service delivered by the respondents?

SUMMARY OF PLEADINGS

Rajiv, as a consumer has the right to be informed about the standards and potency of the service including their procedures and consequences, such as of medical services too. But as the facts he was not informed about the same.

Therefore there exists negligence on the part of the respondents towards the consumer.

As it was not informed about the procedures, such as removal of organ, and its consequences to the appellant or to person for her behalf there exist negligence in the deliverance of medical service by the respondents.

Due to the removal of the uterus appellant had to face several hormonal problems as the consequences. Therefore, due to deficiency in medical service she had to face various physical problems.

Due to the removal of the uterus, the appellant could not conceive again. This made her face lots of criticism amongst family and she is mentally broken down with the fact that she cannot conceive again. Therefore due to deficiency in medical service appellant had to suffer from mental injury. PLEADINGRajiv (on behalf of the appellant) was not informed about the procedure involved in operation, such as removal of organ (uterus), and its consequences conducted by the respondents.During the operation for MTP, respondent no.2 came out of the operation theatre and informed that the appellant was bleeding profusely; therefore to stop the bleeding respondents had to conduct an operation for which they seek Rajivs permission. Rajiv was so scared and tensed and was not at all in presence state of mind, he gave his assent and for as the fact states that he was not informed about what the operation was about and its consequences.

Section 6(b), Consumer Protection Act 1986

6. Objects of the Central Council - The objects of the Central Council shall be to promote and protect the rights of the consumers such as,-

(b).The right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices.

As per the above act Rajiv, (on behalf of the appellant) as a consumer has the right to be informed about the standards and potency of the service including their procedures and consequences, such as of medical services too. But as the facts he was not informed about the same.

Therefore there exists negligence on the part of the respondents towards the consumer.

Deficiency existed in the deliverance of Medical Service, such as Medical termination of Pregnancy, on the part of the Respondents.

As it was not informed about the procedures, such as removal of organ, and its consequences to the appellant or to person for her behalf there exist negligence in the deliverance of medical service by the respondents.

The appellant suffered from physical injury/damage/ deterioration, due to deficiency in medical service delivered by the respondents.

Due to the removal of the uterus appellant had to face several hormonal problems as the consequences. Therefore, due to deficiency in medical service she had to face various physical problems.

Appellant suffered from mental injury/damage/deterioration, due to deficiency in medical service delivered by the respondents.Due to the removal of the uterus, the appellant could not conceive again. This made her face lots of criticism amongst family and she is mentally broken down with the fact that she cannot conceive again. Therefore due to deficiency in medical service appellant had to suffer from mental injury.

PRAYERIn lights of the facts stated, arguments advanced, the Petitioner, humbly Prays before the Honourable Court to To please allow the compensation claimed, with cost incurred.The Court may also be pleased to pass any other order, which the Court may deem fit in light of Justice Equity and good conscience.

ALL OF WHICH IS MOST HUMBLY PRAYED.

Counsel(s) Appellant 10