Tamil Nadu

StateCommission

A/34/2015

Regional Director - Complainant(s)

Versus

A. Sajjitha Parveen - Opp.Party(s)

TNC Kavsik

31 Aug 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

              TMT. S.M.   LATHA  MAHESWARI,                                                       MEMBER  

 

F.A.No.34/2015

(Against the order passed in C.C.No.38/2004, dated 07.01.2014 on the file of the District Commission, Chennai (North), Chennai.)

 

 THE 31^st DAY OF AUGUST 2021.

The Regional Director,

Employees State Insurance Corporation,

143, Sterling Road,

Nungambakkam, Chennai – 34.                                                                                                                Appellant/1^st opposite party

 

                       Vs 

 

1.   A. Sajjitha Parveen,

      D/o. Abdul Masjid,

      W/o. Abdul Khader,

      L. 401, 19^th Cross street,

      Thiruvalluvar Nagar,

      Thiruvanmiyur,

      Chennai.                                                                                                                                           1^st Respondent/complainant   

 

2.   Dr. Karthikeyan,

      Insurance Medical Officer,

      The Employees State Insurance Dispensary,

      Adiyar at Thiruvanmiyur,

      Chennai -41.                                                                                                                             2^nd Respondent/2^nd opposite party  

 

Counsel for the Appellant/1^st Opposite Party   :  M/s. T.N.C. Kawsik, Advocate.  

Counsel for the 1^st Respondent/Complainant   :  M/s. Elveera Ravindran, Advocate. 

Counsel for the 2^nd Respondent/2^nd Opposite Party:  M/s. S.Vijayakumar, Advocate. 

            This appeal is coming before us for final hearing on 31.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT. (Open Court)   

1.       This appeal has been filed under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District Commission, Chennai (North) in C.C.No.38/2004 dated 07.01.2014 allowing the complaint filed by the complainant/1^st respondent herein directing the appellant/1^st opposite party to pay a sum of Rs.5,00,000/- to the complainant as compensation with interest at the rate of 9% per annum from the date of complaint till the date of payment and further directed to pay Rs.5000/- towards costs of the complaint with default interest at the rate of 9% per annum. 

2.      For the sake of convenience and brevity, the parties are referred to here as they ranked in the District Consumer Disputes Redressal Commission, Chennai (North), Chennai.          

3.       The brief facts which are necessary to decide this appeal is as follows;-

          The case of the complainant before the District Commission is that she is working at M/s. Isex Fashions Private Limited, Palavakkam, Chennai.  She was enrolled as subscriber under the Employees State Insurance Corporation Scheme.  Under the said scheme, the complainant and her family members which included minor son, Mohammed Asiq aged about 5 years and minor daughter Roshan Banu aged about 3 years were entitled to avail all the medical assistance and other monetary and other benefits offered for the benefit of the employees who had to mandatorily enrol under the said scheme. The complainant was allotted Code No.51-57576-18 and insurance No.13329270.  The complainant was regularly remitting a sum of Rs.35/- for every month towards the subscription of the said scheme. The complainant and her family members used to avail all the medical service rendered by the appellant/1^st opposite party whenever it is necessary.  While so, on 18.06.2003, the complainant’s minor son Mohaammed Asiq suffered fever, cough and vomiting and hence the complainant took her son to the 2^nd opposite party for medical treatment.  The 2^nd opposite party has examined the complainant’s son and prescribed some medications.  The complainant had to collect medicines from the pharmacy attached to the appellant/opposite party dispensary.  The complainant had collected medication from the pharmacy and following the instructions of the 2^nd opposite party,  she had administered the same to her son. After administration of medication as prescribed by the 2^nd opposite party,  on 22.06.2003 morning her son’s conditions became very serious and he became listless and could not move and therefore, the complainant immediately rushed her son to a private clinic namely, SP Clinic, Injambakkam who diagnosed that her son consumed harmful drugs which was a threat to the life of the child and advised her to take him to the children’s hospital immediately and on admission in the Children’s Hospital, the complainant had shown the medication dispensed by the opposite party to the concerned doctors who immediately diagnosed that the patient had consumed harmful medication which was serious and that the patient had faint chances of recovery. Immediately, the doctor who was on duty in children’s hospital reported the matter to the police and the complainant handed over the medication dispensed by the opposite parties to the police authorities in the presence of the duty doctor at Children’s Hospital.  On enquiry, from the concerned police authorities, the complainant had deposed that she had availed of service rendered by the opposite parties and having consumed the medication prescribed and dispensed by the opposite parties resulting in serious conditions of her son.  Her son was given treatment from 22 June 2003 and on 25^th June 2003,  her son died. According to the post-mortem report, issued by the doctor who conducted post-mortem, it is stated that the cause of death was due to consumption of wrong medication given by the opposite parties.  Hence, the case under section 304(a) IPC has been registered by the police authority against the opposite parties.  The organisation run by the opposite parties is for welfare of the employees-members of the opposite parties scheme for which they are paying premium and therefore the opposite parties ought to have given due care and caution.  But, it is seen that the least regard and care shown to human life resulting in the death of a minor child  who died owing to the gross negligence and deficiency in service and dereliction of duty.  Further, the basic medical ethics required not only the opposite parties but also the medical fraternity in general to diagnose, treat and prescribe medication to the patients under strict standard of care while dispensing the medication. The complainant lost her son only owing to the deficiency in service and dereliction of duty on the part of  the opposite parties. Hence, the complainant has filed a consumer complaint before the District Commission claiming the directions to the opposite parties to  

1.  pay a sum of Rs.1,00,000/- towards damages for the mental agony and sorrow,
2. pay  a sum of Rs.1,00,000/- for loss of estate     
3. pay a sum of Rs.1,00,000/- for loss of love and affection
4. pay a sum of Rs.1,00,000/- for the pain and suffering underwent by the complainant’s son, the complainant and the family members
5. pay a sum of Rs.6,00,000/-for loss of future pecuniary benefits and also
6. pay the costs of the complaint.           

4.      The said case was resisted by the appellant/1^st opposite party by contending inter alia that the 1^st opposite party is in no way responsible for the lapses in providing medical treatment by the 2^nd opposite party/doctor, Karthikeyan,  Insurance Medical Officer, ESI Dispensary,  Adayar who is the under the control of the DMS (ESI Scheme) Chennai is solely responsible for the lapses in providing medical treatment, if any.  Hence they sought for dismissal of the complaint.   

5.        The 2^nd opposite party also filed a written version denying the allegations of the complainant. In the written version, the 2^nd opposite parry contended inter alia that the specific defence of the 2^nd opposite party is that the complaint itself is not maintainable as this Commission has no jurisdiction to entertain the complaint as per section 75 (3) of the Employees State Insurance Act, 1948. The remedy for the complainant lies only before the appropriate Forum under the ESI Act.  Therefore, it is not open to the complainant to seek remedy under the provisions of the Consumer Protection Act.  The complainant brought her minor son Mohammed Asiq to the ESI Dispensary, Adayar on 18.06.2003 around 7.30 a.m. complaining, fever, cough and cold.  The 2^nd opposite party examined him and ultimately prescribed the medicines Orthobid Syrup, Tixylix Syrup, Sparmax Tablets. The said medicines are identified for paediatric use. The complainant had collected medicines prescribed from the pharmacy and she was instructed to administer the medicines to her son.  As per procedure, the patient will have to visit the dispensary once in two days for review and if it is required for examination further reference would be made to higher hospitals depending upon the conditions of the patient.  In this case, the complainant never visited the ESI dispensary after the child was examined on 18.06.03 and she never took any advice from the opposite party after the initial consultation.   Therefore,   it is an utter lie on the part of the complainant that the 2^nd opposite party advised her to continue the medicines as recommended earlier. It is false to state that the complainant’s son had consumed harmful medicines which was a threat to the life of the child and that she was advised to take her son to the children’s hospital immediately.   In fact, the 2^nd opposite party had examined the child and prescribed the medicines which are standard and prescribed for the ailments suffered by the complainant’s child.  The complainant had also collected proper medicines from the pharmacy of the ESI Dispensary, Adayar. Unless the complainant brings her child again for review, it would not be correct on the part of the complainant to allege that the child had consumed harmful drugs.  The 2^nd opposite party is not responsible for the death of the complainant’s son.  The 2^nd opposite party has prescribed proper and correct medicines to the child on 18.06.2003 and thereafter the complainant has not chosen to bring the child for review to the dispensary till his death.  The complainant had taken the child to the Children’s Hospital and reported the matter to the Police. Since the matter is under investigation by the police, it is not possible for the 2^nd opposite party to traverse the allegation made against the 2^nd opposite party. The 2^nd opposite party cannot be made responsible for the death of the child since medicines prescribed by the 2^nd opposite party is not harmful and the same is dispensed by the ESI Dispensary and thus the 2^nd opposite party sought for dismissal of the complaint.  

6.        Originally, the complaint was dismissed by by the District Commission, Chennai (North) as it has no jurisdiction to entertain the complaint stating that the dispute ought to have been raised before the competent Tribunal constituted under the ESI Act, 1948.  Aggrieved over the same, a Revision Petition R.P.No.41/96 was filed before this Commission and this Commission after enquiry set aside the order of the District Commission and remitted back the matter to the District Commission for consideration on merits for the reasons that the District Commission was in error in dismissing the complaint on preliminary point. Thereafter, on hearing both sides and marked documents Exhibits A1 to A15 on the side of the complainant and no document was marked on the side of the opposite party, the District Commission dismissed complaint stating that the district Commission has no jurisdiction to entertain the complaint as there is specific bar under the provisions of the Employees State Insurance Act, 1948. 

7.    Aggrieved over the same, the complainant again filed an appeal preferred in F.A.No.853/2011 before this Commission and this Commission after analysing the materials set aside the order of the District Commission for the reasons that the District Commission has failed to consider the observation made by this Commission in the earlier proceedings in R.P.No.46/2006 in the said Revision Petition, this matter was remitted back to the District Commission for fresh disposal on merits.  Thereafter, the District Commission has decided the case on merits and has decided that section 75 of ESI Act has not barred the case of medical negligence and the Consumer Commission has jurisdiction to entertain the complaint.  The order of the District Commission has also dealt with the case on merits and acknowledged the negligence and deficiency in service on the part of the opposite parties and consequently directed the 1^st opposite party  to pay the compensation of Rs.5,00,000/- to the complainant along with interest at the rate of 9% per annum from the date of c complaint i.e., 16.12.2003 till the date of payment with cost of Rs.5000/- with default interest at the rate of 9% per annum. Aggrieved over the same, the 1^st opposite party has preferred this appeal.   

8.        The counsel for the appellant/1^st opposite party submitted that the pharmacist is the under the control of the 2^nd opposite party and the 2^nd opposite party is under the control of Director of Medical and Rural Health Services, Government of Tamil Nadu. This aspect was not properly considered by the District Commission.  Under Section 58 of the ESI Act, provision of medical treatment to the Insured Persons and to their family is entrusted upon the State Government.  The medical professionals and their personnel are controlled by the State Government.  While so, the District commission has totally erred in holding the appellant/1^st opposite party as liable for the lapses on the part of the pharmacist. Thus, he sought for setting aside the order of the District Commission.   

9.   Per contra, the counsel appearing for the 1^st respondent/complainant submitted that the District Commission has directed the 1^st opposite party to pay a sum of Rs.5,00,000/- on the ground that the 1^st opposite party is vicariously liable for the carelessness and negligence in handing over of the wrong medicines to the complainant/1^st respondent  who had administered the said medicines to her minor son which resulted in his death and thus the District Commission has rightly held that the 1^st opposite parry is responsible for the negligence committed by their employee and ordered to pay compensation and thus the order of the District Commission is to be upheld.

10.     Heard the submissions of the both sides and perused the materials available on record.  On perusal of the entire materials available on record, we find that the counsel for the appellant /1^st opposite party has stated that the Consumer Commission has no jurisdiction to entertain the complaint as there is a bar under section 75 of the Employees State Insurance Corporation Act 1948.  Based on this contention, the District Commission has rejected the complaint.  Aggrieved over the same, the Revision Petition No.46/2006 filed by the complainant in which this Commission has also held that the Employees State Insurance Act cannot cover the cases of medical negligence alleged against the hospital and the doctors employed therein and remitted back the matter to the District Commission for fresh disposal.   Again, the complaint was dismissed by the District Commission stating that the section 75 of the Employees State Insurance Act bars the complaint and dismissed the complaint. Aggrieved over the same, the complainant filed an appeal in F.A.No.853/2011 in which this Commission again observed that complaint has not been properly enquired in all respects and the District Commission failed to consider the observation made by this Commission proper way in R.P.No.46/2006 and finally remitted back the case to the District Commission for fresh disposal.  Therefore, again and again the same point of question cannot be raised. The only submission made by the counsel for the appellant/1^st opposite party is that so far as the merits are concerned, that wrong medicines were administered to the minor deceased son of the complainant.  But, at the same time, the  only submission made by the counsel for the appellant is that  under Section 58 of the Employees State Insurance Act,  provision of medical treatment to the Insured Person and to their family is entrusted upon the State Government and the medical professionals and their personnel are controlled by the State Government.  While so, the District Commission has erred by holding that the appellant/1^st opposite party is liable for the lapses on the part of the pharmacist. This contention of has not been raised in the written version filed by the appellant/1^st opposite party. But, we are not inclined to accept the submissions made by the appellant by observing that there is a vicarious liability on the part of the 1^st opposite party for the lapses committed by the pharmacist who is under the control of the 2^nd opposite party.  Therefore, we do not find any error or infirmity in the order passed by the District Commission and thus the appeal is dismissed confirming the order of the District Commission.         

10.        In the result, the appeal is dismissed confirming the order of the District Commission, Chennai (North) made in C.C.No.38/2004, dated 07.01.2014.  There shall be no order as to costs in this appeal.

 

 

 

S.M. LATHA MAHESWARI,                                                                                                                              R. SUBBIAH,

           MEMBER.                                                                                                                                                  PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Aug/2021