Andhra Pradesh

StateCommission

FA/594/2011

1.M/S K.K.ARYA MEMORIAL SHIVA SREE HOSPITAL, REP. BY dR. k. rAJESHWARI, NEAR MAHANKALI GROUNDS, - Complainant(s)

Versus

1. SMT. R.RAJITHA, W/O SRINIVAS AGED 26 YEARS, R/O PLOT NO.163, - Opp.Party(s)

M/S VOOSA RAGHU,

11 Dec 2013

ORDER

 
First Appeal No. FA/594/2011
(Arisen out of Order Dated 13/04/2011 in Case No. CC/25/2008 of District Warangal)
 
1. 1.M/S K.K.ARYA MEMORIAL SHIVA SREE HOSPITAL, REP. BY dR. k. rAJESHWARI, NEAR MAHANKALI GROUNDS,
RANGASHAIPET, WARANGAL,
2. 2. DR.K.RAJESHWARI, W/O DR.K.CHANDRASEKHAR ARYA,
NEAR MAHANKALI GROUNDS, RANGASHAIPET,
WARANGAL,
A.P.
...........Appellant(s)
Versus
1. 1. SMT. R.RAJITHA, W/O SRINIVAS AGED 26 YEARS, R/O PLOT NO.163,
SAINAGAR, ALLWYN COLONY, KUKATPALLY, HYDERABAD.
2. 2. R. SRINIVAS, S/O R. SHANKARACHARY,
R/O PLOT NO.163, SAINAGER, ALLWYN COLONY, KUKATPALLY,
HYDERABAD,
A.P.
...........Respondent(s)
 
BEFORE: 
 HONABLE MR. SRI R. LAXMI NARASIMHA RAO PRESIDING MEMBER
 HON'ABLE MR. T.Ashok Kumar MEMBER
 HON'ABLE MR. S. BHUJANGA RAO MEMBER
 
PRESENT:
 
ORDER

A.  P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD

 

FA  594 of 2011    against CC  25/2008   on the file of the District Consumer Forum, Warangal

 

Between :

 

01. M/s. K. K. Arya Memorial Shiva Sree Hospital

Near Mahankali Grounds, Rangashaipet,

Warangal, rep. by Dr. K. Rajeshwari.

 

02. Dr. K. Rajeshwari,

W/o Dr. K. Chandrasekhar Arya

Near Mahankali Grounds, Rangashaipet

Warangal                                                       ..  Appellants/opposite parties

 

And

 

01. Smt. R.Rajitha

W/o Srinivas, aged about 26  years,

Occ : housewife, R/o Plot no. 163,

Sainagar ( west ), Allwyn colony,

Kukatpally, Hyderabad.

 

02. R. Srinivas, S/o R. Shankarachary,

Aged about 34 years, occ : Business,

R/o Plot no. 163,

Sainagar ( west ), Allwyn colony,

Kukatpally, Hyderabad                           Respondents/complainants

 

 

 

Counsel for the Appellants            :           M/s. Voosa Raghu

 

Counsel for the Respondents       :           M/s. B. S. Siva Prasad

 

 

FA  271/2012    against CC  25/2008   on the file of the District Consumer Forum, Warangal

 

Between :

 

 

01. Smt. R.Rajitha

W/o Srinivas, aged about 27  years,

Occ : housewife, R/o Plot no. 163,

Sainagar ( west ), Allwyn colony,

Kukatpally, Hyderabad.

 

02. R. Srinivas, S/o R. Shankarachary,

Aged about 35 years, occ : Business,

R/o Plot no. 163,

Sainagar ( west ), Allwyn colony,

Kukatpally, Hyderabad                           Appellants /complainants

 

 

And

 

 

 

 

01. M/s. K. K. Arya Memorial Shiva Sree Hospital

Near Mahankali Grounds, Rangashaipet,

Warangal, rep. by Dr. K. Rajeshwari.

 

02. Dr. K. Rajeshwari,

W/o Dr. K. Chandrasekhar Arya

Near Mahankali Grounds, Rangashaipet

Warangal                                                       ..  Respondents/opposite parties

 

 

Counsel for the Appellants            :           M/s. B. S. Siva Prasad

 

Counsel for the Respondents       :           M/s. Voosa Raghu

 

 

Coram           :

           

                 

Sri R. Lakshminarasimha Rao…      Hon’ble Incharge President

 

And

                                    Sri T. Ashok Kumar                ..         Hon’ble Member

 

Wednesday the Eleventh Day of December

Two Thousand Thirteen

 

          Oral Order       :   ( As per Sri T. Ashok Kumar , Hon’ble Member )

 

****

 

 

       1.        These appeal cross appeals are filed by the opposite parties and the complainants respectively as against the order dated 13.4.2011 in CC 25/2008 on the file of the District consumer Forum, Warangal. Since both the appeals are arising out of the same impugned order, this Commission intends to dispose of the same by a common order. For convenience sake, the parties as arrayed in the complaint are referred to here under :

 

2.            The brief facts of the complaint  are as follows :

 

The complainants 1 and 2 married each other in the month of March, 2001 and have been leading a happy marital life.  The 1st complainant could not conceive and in the said context both the complainants spent huge amount for medical checkup etc  last after five or six years the first complainant conceived and has come to her parents’ house at Bollikunta, Sangam Mandal, Warangal District for delivery.  She approached OP.1 hospital for treatment during the nineth  month of her pregnancy and ever since she has been under the treatment of the Ops. .  On 11.2.2006. scanning was ordered by OP.2  treating doctor  and accordingly it was so done at Jayaprakash pathological laboratory which is a sister concerned of the opposite party hospital.    Blood and urine tests were also conducted on the 1st complainant . She had undergone all the tests advised by Ops and followed the prescriptions given from time to time and the opposite party no. 2 expressed satisfaction about the foetus  after scrutinizing all the reports. While the things thus stood, on 18.12.2006 the second opposite party medical practitioner prescribed ANXOL (diazepam tablets) and accordingly the first complainant consumed  the said drug but on enquiry  it revealed that the OP. 2  ought not to have prescribed such a drug to the first complainant without following the effect of the drug so far as  it relates to a pregnant woman. As per the directions of second opposite party the  first complainant joined in OP 1 hospital 23.1.2006 and at about 11.00 AM second opposite party administered two saline bottles as she found that there was no movement in the foetus. Later on, OP.2 advised the first complainant and referred her to JR hospital on  the same day during evening hours and by the time the first complainant was referred to the said other hospital,  foetus of the first complainant died in the womb itself. Immediately, Smt. Dr. Radhika, conducted surgery on the first complainant and extracted a dead male Baby.  On account of wrong prescription of the said drug, death of foetus in the womb of  the  first complainant had taken place. The said acts and lapses on the part of the Ops amount to professional negligence and deficiency in  service.  Second opposite party being qualified in BAMS is not eligible to prescribe allopathic medicines or apply the sutures. On the other hand, the Ops had shown on their letter head that they are qualified in conducting delivery operation and so on and so forth and with the back drop of the qualifications they are estopped from doing all the acts referred to in the letter head under the name and style of OP.1 hospital.  Inexperience and lack of competency  of the Ops resulted in such a misery subjecting the complainants to loss and   injustice and  as such  Ops  are liable for the death of baby in the womb of the first complainant.  A  legal notice dt. 45.2007 was addressed to the Ops calling upon them to pay Rs.15 lakhs damages compensation together with costs but there was no response. Hence the complainant for such a compensation and costs.

 

3.         Ops 1 and 2   filed counter their detailed written version resisting the complaint and the gist of the written version is that there are no bonafides on the part of the complainants and the complaint was filed with ulterior motive for wrongful gain by creating unpleasant circumstances. Originally CC 8/2008 filed by the complainants was returned by this Commission vide order dated. 22.2.008 and consequent to passing of such an order the complainant ought to have filed the complaint amending necessary paras instead of doing so they filed the complaint before the District Forum as it is. On 18.12.2006 first complainant approached OP 1 hospital with a complaint  of severe headache and hypertension and in such circumstances OP 1 advised to  admit in their hospital but the complainants on phone used to take advice of  their family doctor/gynecologist and they were reluctant to admit in OP hospital and according to their wish approached  another hospital and Ops never expressed satisfactory growth of foetus of the first complainant. Whether Anxol ( Diazepam ) tablate can be prescribed or not can be decided by the expert and not by the complainants. The complainants 1 and 2 approached opposite parties for friendly advice and not for any permanent treatment.  The complainants themselves disclosed  that they approached Ops hospital in the 9th month of pregnancy of the first complainant and that itself shows as to how belatedly they  approached the hospital. the first complainant did not disclose her previous history or medical treatment nor produced any prescription chits and at that time she was having high BP and in such circumstances it was explained to her with regard to CPD that is CEPHALO PELVIC DISPROPORTION and the first complainant herself revealed that there is lack of foetal movement since three days and then the Ops clearly explained with regard to IUD ie. Intra Uterine death in such circumstances explaining the consequences and emergency asked the first complainant to be admitted in higher hospital but for want of male attendance complainants themselves delayed to admit first complainant in higher hospital and due to their negligence they approached the JR hospital at a belated stage and experienced their own fate but Ops did not render any deficient service as alleged. . In the notice dt. 19.4.2007 issued by Mr. K. Narasimha Rao, advocate, they claimed Rs. 5 lakhs compensation and on receipt of such a notice Ops directly approached the complainants and asked them as to why such a notice was issued and then the complainants assured to drop the further proceedings and withdraw the notice.  After they came to know the real facts with regard to the health of first complainant and suppressing the same another notice dt. 4.5.2007 was got issued through Mr. B.S Siva Prasad, Advocate, Hyderabad claiming Rs.15 lakhs compensation and it was replied suitably vide  a notice dt. 21.5.2007 got issued through Mr. M. Sadasivudu, Advocate, Hanamkonda. There is no deficiency in service on the part of Ops as alleged nor the Ops rendered deficient service and thus prayed to dismiss the complaint.

:

  4.          Both sides filed evidence affidavits reiterating their respective stands aforesaid.   Ex. A-1 to A-34   was marked on behalf of the complainant and Ex. B -1 to B 3 were marked for the OPs.

 

  5.          Having heard both sides and considering the evidence on record, the District Forum allowed the complainant in part directing the Ops 1 and 2  jointly and severally to pay Rs. 5 lakhs to the complainants together with interest @ 7.5 % pa from the date of complaint  ie. 19.4.2008 till the date of deposit and costs of Rs.500/- giving one month’s time for compliance. Aggrieved with the said order, Ops filed the appeal FA 594/2011 and mainly contended that  the order of the District Forum is erroneous and that previous doctors prescriptions were not insisted by the District Forum and that previous medical bills produced are fabricated and that there is no expert’s opinion regarding Anxol  Diazepam’s  effect on the foetus and that BAMS degree holder second OP can prescribe allopathic medicines as per section 17 (3)(B) of Indian Medicine central Act 1917 and the Drugs and cosmetics Act 1940 ad the Drug and cosmetic Rules, 1945 section 6 (2)(12),33 and 33 (N) and the District Forum did not consider the same and that when there is no report from the side of the complainants as to exact cause of foetal death,  the case of the complainant that death occurred only due to drug Anxol  is incorrect and that second opposite party had directed the complainants to JJ hospital for second opinion and that the same was not appreciated by the Forum and that material on record does  not disclose that Ops rendered deficient service and thus prayed to allow the appeal and set aside the impugned order. In FA 271/2012 .the complainants contended that even though the District Forum found that Ops rendered deficient service awarded meagre compensation and thus prayed to allow their appeal and enhance the compensation as prayed for.

 

6.            Both side counsels filed their respective written arguments in support of their contentions.  

 

7.            As per orders in IA 1269/2013 dt. 22.08.2013  Ex. A35 to A40  literature on Diazepam were marked as additional evidence on behalf of the complainants. As per orders dated 25.4.2012 in IA 783/2013, Ex. B-4 and B5 were received as additional evidence.  As per orders dated 21.10.2013 in IA 2278/2013, Ex B6 and B7 are received as additional evidence.

 

8.            Now the point for consideration is whether the order of the District Forum is vitiated either in law or on facts as contended by the Ops 1 and 2 and also whether the complainants are entitled for enhancement of compensation as claimed by them?

 

9.            There is no dispute that the complainants 1 and 2 are the wife and husband respectively and that their marriage had taken place in the month of March 2001 and that even after 5 to 6 years of their leading marital life the first complainant did not conceive and that after such a gap the first complainant conceived and that while  she was carrying 9th month pregnancy she was taken to Ops’ hospital by her husband, second complainant for treatment

 

10. According to the complainants in the said process  the 2nd opposite party directed the first complainant for scanning on 11.12.2006 at Jayaprakash Pathological laboratory which is a sister concern of Ops and that after blood and urine tests on 18.12.2006 second opposite party treating doctor   prescribed necessary medicines to her and that she followed prescriptions from time to time and that OP.2 expressed satisfactory growth of foetus in the womb of the first complainant on scrutinizing all the reports and that  while the things thus stood on 18.12.006 the second opposite party medical practitioner prescribed one Tablet i.e.,  ANXOL ( Diazepam) to the first complainant and that she used the said drug as directed by second opposite party and that on 23.12.2006, the first complainant joined in the hospital of Ops at about 11.00 AM and then the second opposite party administered two saline bottles to her and also observed that there was no foetus movement and as such she was referred to Jaya hospital during evening time and by the time she was so referred the foetus in the womb of the first complainant died. The grievance of the complainants is that the said ANXOL tablet ought not to have prescribed to the first complainant pregnant woman and that the said wrong prescription resulted in the death of the foetus aforesaid and thus Op.1 hospital and OP. 2 treating doctor rendered deficient service. It was also alleged by the complainants that the second OP being qualified in BAMS is not eligible to prescribe allopathic medicine and also to  suture and that without required  qualifications the opposite parties  running the hospital declaring that they are qualified in conducting deliveries, operations so and so forth and that the same also amount to deficiency in service and unfair trade practice.

 

11. On the other hand, the contention of the opposite parties is that on 11.12.006 along with their relatives who are well known to the OP. 2 the complainant approached OP-1  hospital for friendly advice and that the first complainant has chosen herself to get treated by second OP and that she never claimed that she is an allopathic doctor and the prescriptions clearly disclose that second op is a BAMS doctor and that even though the second OP asked for previous prescriptions to know the condition of the first complainant it was not so produced and that after two weeks the first complainant came to the hospital of Ops with a complaint of severe headache and hypertension and that in order to reduce the same the second OP prescribed one tablet of Anxol 2mg daily for five days  and that on 18.12.2006 itself the second opposite party wrote on the prescription CPD i.e., CEPHALO pelvic disproportion which means  it is a condition where the head of the baby is big and the pelvic area is small which hampers the movement of the baby and causes complications during delivery and that since first complainant had severe headache and was feeling silent seizure along with hypertension with an intention to give relief to her the second opposite party prescribed Anxol 2mg ( Diazepam ) which acts like mild sedative and that on 23.12.2006 the  first complainant visited the second opposite party medical practitioner at about 1.00 AM at OP. 1 hospital  with the complaint that since 3 days she could not feel the movement of the foetus and that even though the OP hospital had a Gynecologist who is MD, DGO since the complainants themselves wanted to go from the said hospital second OP referred the first complainant to Jaya hospital which is a well-equipped hospital to whom the OP-1 hospital regularly send its patients  and that for want of male attendant the complainant no. 1 waited for some time and that during the said period a saline dip was attached to the first complainant to prevent dehydration and that the discharge sheet issued by Jaya hospital did  not mention the condition of the first complainant and later on it appears that the said foetus died in the womb of the first complainant and in such circumstances even though there is no professional negligence the complainants alleging so claimed compensation by issuing a legal notice and thereafter filed a consumer complaint before this Commission in CC 8/2008 enhancing claim from Rs.5 lakhs  claimed in the first notice and Rs.15 lakhs  in the second notice to Rs.23,50,000/- without valid reasons and that since the said  complaint was returned with a direction to file the same before appropriate District Forum it was so filed before District Consumer forum, Warangal without amending the complaint suitably only by mentioning Rs.15 lakhs  as compensation claimed by the complainant and that it was so done with an intention to tarnish the image of the OPs hospital and to have wrongful gain. It is also specifically contended by the Ops that even though second OP is BAMS degree holder she is competent to practice on allopathic side and that the prescription of Diazepam was also not harmful to the first complainant and therefore the said acts cannot be considered as deficient service and as such the complainants have no case to claim compensation against the Ops.

 

12.        In a decision reported  in 1996  (3) CP 205 SC between Poonam Varma Vs Aswin Patel and others the Hon’ble Supreme Court of India held that “ where a Homeopathic  practitioner got registered as such under the provisions born by Homeopathic Practitioners Act  has right to practice in Homeopathy only and he cannot be registered under Indian Council Act or State Medical council Act.  In reply to the said contention the Ops cited a decision reported in I (2013) CPJ  368 NC between Kalpana Ben and others Vs. Dr. Kalpesh V. Parik and another  that for the person having a BAMS degree can practice anywhere  in India so also modern Allopathic medicine along with traditional Ayurveda as the curriculum includes  studying and teaching of modern anatomy, physiology, principles of medicine, preventive and social medicine, pharmacology, toxicology, forensic medicine, ENT , ophthalmology, principles of surgery etc. Thus the contention of the complainants and finding of the District Forum that a BAMS degree holder cannot prescribe allopathic medicines could not be appreciated in favour of the complainants. Ex. B-4, G. O. Ms. No. 202, dated 17.9.2009 of Government of A. P. , Health Department and Ex. B-6 notification from Central Council of Indian Medicine, dt. 19.5.2004  also support the case of the Ops that second opposite party can prescribe allopathic medicines. 

 

13. Now it has to be seen whether there is any other dependable material or circumstances, on record in this case, to come to a conclusion that opposite parties rendered deficient service to the first complainant in connection with the treatment given to her. After filing evidence affidavit of OP. 2 doctor to test her veracity in the evidence she was subjected for cross examination by the complainants and in the said cross examination she accepted that she does not know lithal diazepam. Still she used the said drug it is her evidence that she did not prescribe any medicine per hypertension and it shows that he was negligent in prescribing such a drug and also for not prescribing any medicine for hypertension. It appears that she is not aware of the literature pertaining to the said drug because she stated that she did not read allopathic books and nowhere claimed that she had gone through the relevant literature. She admitted that diazparm enters placental barrier, all the nutrition material passes through placenta to the foetus and that diazepam is sedative one. In a literature pertaining to Diazepam under the caption of central nervous system submitted by the complainant before the District Forum it is mentioned as under …. It has a plasma half-life of more than 20 hours. Diazepam is metabolized in liver to pharmacologically active metabolite – desmethym, which has a long plasma half-life ( A0 hours ).  It crosses the placental barrier and when given before labour may cause hypotonia and mild respiratory depression in neonates.  It was advised to avoid the said diazepam. 

 

14. As seen from Ex. B-7 literature received as additional evidence as per orders dated 21.10.2013  in FAIA 2278/2013 and also impugned order Diazepam is a category D and the said category says that there is positive evidence of human fetal risk but the benefit from the use in pregnant woman may be acceptable despite the risk provided the drug is needed in a life threatening  situation or for a serious disease,  for which safer drug cannot be used.   There is no material on record or contention from the Ops that since the first complainant was in life threating situation or for a serious disease for which a safer drug cannot be used or ineffective the second OP  was justified in prescribing  diazepam for five days and on the other hand there is evidence on record from second opposite party that since the first complainant was complaining headache it was so prescribed for five days. Ex. A35 to 40 which are received as additional evidence in this Commission also show that Anxol ( diazepam) is contra indicated to the pregnant in all the trimesters either first or third as the said drug can cause foetal abnormalities and should not be used during pregnancy time. In Ex. A35 it is mentioned that “ Diazepam when taken late in pregnancy, during the third trimester causes a definite risk of a severe benzodiazepine withdrawal syndrome in the neonate with symptoms including hypertonia, and reluctance to suck, to apnoeic spells, cyanosis and Impaired metabolic responses to hold stress. Floppy infant syndrome sedation in the new born may also occur. Symptoms of Floppy infant syndrome neonatal benzodiazepine withdrawal syndrome have been reported to persist from hours to months after birth. In Ex. A36 it is mentioned that valium increases the risk of birth defects if the mother takes it during pregnancy and there is a risk that new born may go through withdrawal if the mother takes diazepam during the third trimester. Used by woman who may or are planning to become pregnant, and continued used by woman who discover they are pregnant should be considered only when the clinical situation warrants the risk to; the foetus. Diazepam is excreted in breast milk so use when breast feeding is not recommended. In Ex. A37 it is mentioned that you should not take diazepam tablets  if you are pregnant . Planning to become pregnant or are breast feeding. If you take diazepam tablets late in pregnancy or during later you baby might have a low body temperature, floppiness and breathing difficulties . If taking regularizing during pregnancy your baby may develop withdrawal symptoms. Ask your doctor or pharmacist for advice before taking medicines.  In Ex. A38 it is mentioned that in general the use of diazepam in woman of child bearing potential, and more specifically during known pregnancy should be considered only when the clinical situation warrants the risk to fetus.  The possibility that a woman of child bearing potential may be pregnant at the time of institution of therapy should be considered.  If this drug is used during pregnancy or if the patient becomes pregnant while taking this drug the patient should appraise of the potential hazard to the fetus. Patient should also be advised that if they pregnancy during therapy or intend to become pregnancy  they should communicate with their physician about the desirability of discontinuing the drug. The second opposite party had no knowledge of the said literature and consequences of using the said drug but still prescribed such a drug to the first complainant pregnant woman.  When the said drug had human foetal risk the second OP should have been more careful in prescribing the said drug but she used it to the first complainant pregnant woman without bothering about consequences thereof and it amounts to negligence and deficient service.

 

15. Admittedly, second op is not a gynecologist. According to her             Dr. Anuradha is a visiting doctor of gynecology to OP hospital. IT is not mentioned on any of the prescriptions filed by the complainants pertaining to OP hospital that Dr, Anuradha, Gynecologist is a visiting doctor to OP hospital. There is no documentary or other evidence that the said doctor is visiting doctor of the hospital.  She did not file any such affidavit. Similarly there is no evidence or contention of the OP that the said Anuradha attended on the first complainant and prescribed medicines or drugs to her and therefore no useful purpose will be served with the statement of second opposite party that Dr. Anuradha is a visiting doctor of OP. 1 hospital and in such circumstances, undertaking delivery cases etc. some times which may result in severe complications amount to unfair trade practice. 

 

16.  According to the second opposite party she had no knowledge or the said  consequences but still prescribed such a drug to first complainant woman.  When the said drug had human fetal risk the complainant should have more careful in prescribing the said drug but as already described supra according to the second OP itself she was not aware as to the complications after using the said drug to a pregnant. Thus the negligence is conspicuous on the part of the opposite parties, more particularly, second opposite party.

 

 

17. It is not the case of the Ops that knowing fully well that such a drug will not will cause abnormalities only during organ development which happens during the first three months of pregnancy and that in the last Trimester no organ development takes place the second opposite party prescribed such a medicine to the first complainant but as described supra, she prescribed such a drug without knowing the side effects or consequences thereof and as such the argument of Ops in the said context are not helpful for it. It is much more so when there is a mention in Ex. B7 that on account of diazepam there is positive evidence of human foetal risk. In such circumstances, Ex. B-5 literature and the contention of the Ops that mild dosage of Anxol is not harmful to the foetus of the first complainant could not be appreciated.   

 

18.  The substance of the  decision reported in….CIVIL APPEAL NO.2641_ OF 2010 (Arising out of SLP(C) No.15084/2009) V. Kishan Rao ..Appellant(s) Versus Nikhil Super Specialty Hospital ..Respondent(s) & Another is that it is not bound by general directions given  in paragraph 106 in D’Souza and that whether expert evidence is not required depends upon the  facts and circumstances of the case. Therefore the contention of Ops that there is no expert opinion in this case to come to a conclusion that on account of the said drug prescribed by the Ops death of fetus occurred could not be appreciated so also the decisions cited by the Ops reported in 2009 ( 9) SCC between Ramesh Chandra Agarwal Vs. Regency hospital ltd and another, Jacob Mathew Vs. State of Punjab and another, 2005 (6) SCC (1), martin F D Souza Vs. Mohd. Isaac. 2009 (3) SCC 1 , Kusum Sharma  and others Vs. Batra hospital , Medical Research Centre and another (2010) 3 SCC which are referred to in their written arguments. The proportions laid down in the said decisions in connection with expert’s opinion and medical negligence aspect etc cannot be questioned but in the circumstances of the case they are not helpful to the Ops.

 

19. In view of the provisions sections 120 of Indian Evidence Act , husband is competent to speak on behalf of his wife. Therefore the contention of Ops that since the first complainant did not file affidavit evidence is not helpful and even though the provisions of Evidence Act are not strictly applicable the substance of the said provision which is based on reasoning and principles of natural justice can be taken aid of.

 

20. When the complainant no. 1 was referred to Jaya Hospital, nobody from the hospital of OP 1 accompanied the patient to the said hospital even though she was in critical position and the second OP also did not enquired as to what happened to the said patient later on and the said aspects also amount to deficiency in service. Similarly when second opposite party found that it was a case of CPD i.e. head is big and pelvic area is small what steps he had taken in the said context to overcome the said difficulty had not been explained to her and it also shows that Ops were negligent in their rendering service  towards the first complainant.

 

21. Rendering  free of service to some patients and services on payment to others both types of services fall within the ambit of service U/s 2(1)(o) of C P  Act and even assuming that the complainants did not pay any amounts towards fee to Ops on the said ground they cannot escape from their liability. It is not their contention that to all the persons the said hospital was not open for free treatment nor it is a charitable institution. Therefore the contention of the Ops that a friendly advice was given to the first complainant and that they did not charge any amount from her is not helpful for them.  It is true that earlier the complainant filed a complaint before this Commission claiming Rs.23,50,000/- and that it was returned to file before proper Forum and then the complainants filed CC 25/2008 claiming compensation of Rs.15 lakhs before the District Forum, Warangal and but without amending the cause title incorporating the description of the Forum the returned complaint was as it is submitted only amending the claim portion but hardly the said aspects help the Ops.

 

22. In view of the above discussion, we hold that deficiency in service on the part of Ops 1 and 2 stand established in this case. However, the District Forum granted Rs. 5 lakhs compensation but certainly it is exorbitant. In a case of death of foetus.  It is not the case of the complainants that on account of such death of foetus subsequently the first complainant did not conceive and that the health of the first complainant was damaged considerably.  Hence in the circumstances of the case, the said amount of compensation of Rs. 5 lakhs scale down to Rs. 3 lakhs awarding the same as a global compensation. Thus, the impugned order is liable to be modified by disposing of FA 594/2011 filed by the opposite parties accordingly. In such circumstances, the questioned enhancing the compensation claimed in FA 271/2012 by the complainants does not arise and the same is liable to be dismissed.

 

23. In the result, the appeal in FA 594/2011 filed by the opposite parties is disposed of modifying the impugned order and the amount of compensation of Rs.5 lakhs scaled down to Rs.3 lakhs  ( Rupees Three lakhs only )  remaining order is sustained . No order as to costs of the Appeal   Time for compliance four weeks from the date of receipt of the order.

 

24. The Appeal in FA 271/2012 filed by the complainants is dismissed but without costs.

 

 

 

INCHARGE PRESIDENT              MEMBER                 

                                                            DATED : 11.12.2013.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

FOR THE COMPLAINANT :

Ex.A-35       :         Literature  Log in and Full Wiki

Ex A-36       :         Literature     About.com

Ex.A-37       :         Literature     Medicine net. Com

Ex.A-38       :         Literature     Medicines Org. uk

Ex. A-39      ;         Literature     Daily Med and

Ex.A-40       :         Literature     Drugs A-Z

 

FOR THE OPPOSITE PARTIES :

Ex. B-4        :         G.O.Ms. No.202, Health, Medical & Family ( Welfare

                             (R2) Dept., dt. 17.09.2009

Ex. B-5        ;         Pharmacology of the drug Anxol

Ex. B-6        :         Notification from Central council of Indian Medicine

                             dated 19.05.2004

Ex. B-7        :         Pregnancy safety guide Regarding Axol-2 mg                         

                                ( diazepam) ( internet copy )

 

 

INCHARGE PRESIDENT              MEMBER                 

                                                            DATED : 11.12.2013.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                    

 
 
[HONABLE MR. SRI R. LAXMI NARASIMHA RAO]
PRESIDING MEMBER
 
[HON'ABLE MR. T.Ashok Kumar]
MEMBER
 
[HON'ABLE MR. S. BHUJANGA RAO]
MEMBER

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5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.