RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 843 OF 2010
(Against the judgment/order dated 03-05-2010 in Complaint
Case No.10/1996 of the District Consumer Forum, Mau)
- Al-Shifa Hospital
Mirza Hadipura (Bypass Road)
Mau Nath Bhanjan, District Mau.
Through its Sanchalak Dr. Shri Nisar A. Javed
and Dr. Smt. Shabana Jamal
- Dr. Smt. Shabana Jamal, MBBS, MD, DGO,
MFOGS,W/o Dr. N A Javed
R/o Al-Shifa Hospital, Mirza Hadipura
(Bypass Road), Mau Nath Bhanjan
District Mau.
- Dr. Nisar A. Javed, MD Physician
S/o Shri Abdul Waheed Khan
R/o Al-Shifa Hospital, Mirza Hadipura
(Bypass Road), Mau Nath Bhanjan
District Mau.
...Appellants/Opposite Partsies
Vs.
Smt. Shabnam Jamila
W/o Shri Anwar Husain Ansari
R/o Mohalla Chittanpura
(Nathu Ki Emli),
Qasba, Pargana & Tehsil Mau Nath Bhanjan
District Mau
...Respondent/Complainant
AND
APPEAL NO. 921 OF 2010
(Against the judgment/order dated 03-05-2010 in Complaint
Case No.10/1996 of the District Consumer Forum, Mau)
Smt. Shabnam Jamila
W/o Shri Anwar Husain Ansari
R/o Mohalla Chittanpura, (Nathu Ki Emli),
Qasba, Pargana & Tehsil Mau Nath Bhanjan
District Mau
...Appellant/Complainant
V/s
01.Al-Shifa Hospital
Mirza Hadipura (Bypass Road)
Mau Nath Bhanjan, District Mau.
Through its Sanchalak Dr. Shri Nisar A. Javed
and Dr. Smt. Shabana Jamal
:2:
02.Dr. Smt. Shabana Jamal, MBBS, MD, DGO,
MFOGS
W/o Dr. N A Javed
R/o Al-Shifa Hospital, Mirza Hadipura
(Bypass Road), Mau Nath Bhanjan
District Mau.
03.Dr. Nisar A. Javed, MD Physician
S/o Shri Abdul Waheed Khan
R/o Al-Shifa Hospital, Mirza Hadipura
(Bypass Road), Mau Nath Bhanjan
District Mau.
...Respondents/Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
HON’BLE MR. R C CHAUDHARY, MEMBER
For the Appellant/O.P. : Sri Waseeq-uddin Ahmad, Advocate.
For the Appellant/Complainant : Sri R K Gupta, Advocate.
Dated : 28-10-2014
JUDGMENT
PER MR. JUSTICE VIRENDRA SINGH, PRESIDENT
Both the aforesaid appeal have been filed under Section-15 of the Consumer Protection Act, 1986 against the same judgment and order dated 03-05-2010 passed by District Consumer Forum, Mau in Complaint Case No. 10/1996. Hence both the appeals are being taken up together for decision.
Whereas Appeal No.843/2010 has been filed by Al-Shifa Hospital and others the appellants/opposite parties for setting aside of the impugned judgment and order, the other Appeal No. 921/2010 has been preferred by Smt. Shabnam Jamila, appellant/complainant for enhancement of compensation.
By way of the impugned order, the complainant has been awarded a sum of Rs.40,000/- to be paid by the opposite parties as compensation towards the medical negligence committed by the opposite parties in respect to the treatment to the complainant.
We have heard Sri Waseeq-uddin Ahmad, learned Counsel for the opposite parties and Sri R K Gupta, learned Counsel for the complainant.
It is submitted on behalf of the opposite parties that the District Consumer Forum, Mau has passed the impugned judgment and order dated
:3:
03-05-2010 erroneously against the facts and circumstances on record because the complainant, on 22-07-1995 got the treatment firstly from Aaliya General Hospital in respect of her pregnancy and by the doctor of that hospital, it was found that the pregnancy of the complainant is abnormal and complicated. Thereafter the Aaliya General Hospital started the treatment of the complainant and ultimately referred the complainant to the hospital of the opposite parties on 05-11-1995. The complainant was admitted by the opposite parties on 15-11-1995, where labour pain was induced by the doctor and thereafter SB male child was got delivered/lifted from the womb of the complainant but after delivery of the SB male child, heavy bleeding was started and to save the life of the complainant there was a necessity to operate the uterus of the complainant. The consent was given by the father of the complainant in writing for operation of the uterus and thereafter the operation was successfully conducted and there had been no negligence or carelessness on the part of the opposite parties. The ultimate aim of the opposite parties was to save the life of the complainant. For the intensive care of the complainant, it was advised by the opposite parties that the complainant be taken to B.H.U., Varanasi but the complainant did not follow the advise of the opposite parties and she went to Krishna Nursing Home, Varanasi from where too she was again referred to B.H.U., Varanasi. It is further submitted on behalf of the opposite parties that it is worth important to mention that it has been the admitted fact on record that the complainant was earlier under the treatment of Aaliya General Hospital from beginning to her pregnancy but when the labour pain could not be induced there, then she was got admitted in the hospital of the opposite parties in a very serious condition, where carefully the operation was done and successfully was obtained the child from the womb of the complainant but the child unfortunately was found a dead issue and in such circumstances to save the life of the complainant the operation is done, wherein the opposite parties committed no error in the treatment of the complainant. The District Consumer forum even did not consider the case of the opposite parties pertaining to the insurance of the opposite parties and wrongly fixed the liability of the opposite parties thereby saying erroneously that there had been no medical facilities in the hospital of the opposite parties while the hospital of the opposite parties is well equipped and no complaint
:4:
from any corner in respect of the treatment has come out.
The learned Counsel for the respondent/complainant submitted that in the month of July, 1995, on check-up by Aaliya General Hospital, the pregnancy of the complainant was found absolutely normal. From November, 1995, the complainant regularly got herself checked up in the hospital of the opposite parties where she was admitted for delivery and during the course of operation in the hospital of the opposite parties, the internal parts in the body of the complainant were cut down, due to which excessive bleeding was started. The opposite parties got signed two plain papers from the father of the complainant and after the operation the complainant alongwith newly born dead child were handed over by the opposite parties to the father of the complainant. The complainant got treatment thereafter in Krishna Nursing Home, Varanasi from where, looking into the serious condition of the complainant, she was referred to B.H.U. Medical College. She was remained admitted in B.H.U. Medical College from 17-12-1995 to 13-01-1996 wherein it was found that the uterus of the complainant was removed by the opposite parties. No consent of the complainant was taken by the opposite parties for removal of uterus and, therefore, the complainant filed the complaint for medical negligence to compensate the complainant to the tune of Rs.4,82,000/-. It is also submitted on behalf of the complainant that the child was born alive and the excess bleeding was due to negligent operation by the opposite parties. The Bloos Vedsels were cut down by the opposite parties which were closed later on at B.H.U. The opposite parties wrongly stated that merely the uterus was removed while the artery named iliac was cut down by the opposite parties due to which excess bleeding could not be controlled by the opposite parties. She was hastily discharged by the opposite parties from their hospital and wrongly stated in the discharge slip regarding the provisional diagnosis Primi and final diagnosis SB of a male and advised to B.H.U. for intencive care on 17-12-1995 at 4.00 a.m. It is also written in the discharge slip that the patient Mrs. Shabnam Jamila delivered a SB male child at 11.45 p.m. on 15-12-1995 followed by severe PPH retained placenta which was removed and Cx tear stitched. The bleeding continued. Condition deteriorated, blood was transfused alongwith all haemostatic measures. Diagnostic laparotomy
:5:
revealed flabble uterus. Sub total hysterectomy was done, patient was maintained for few hours. PPH continued from the cervical stump. Vaginal packing done and resuscitation continued alongwith transfusions. Repacking was done of the cervical stump. Bleeding was controlled apparently but restarted after few hours medical measures used. In Krishna Nursing Home the Dr. Smt. Krishna Priya Shukla as per prescription diagnosed P/V-exactly cannot be done as tender abdomen due to hysterectomy-full of clots. She is referred to BHU for further management. The complainant admitted in BHU on 17-12-1995 and as per discharge summary from there on 18-01-1996 the packs which were given by the opposite parties were removed, the clots were removed, active trickling seen, Pe op findings – broad ligament haematoma + part of uterus (fundal part removed). The learned Counsel for the complainant contended that the entire scenario of the treatment establishes the negligence on the part of the opposite parties.
It is further submitted on behalf of the complainant that the District Consumer Forum has awarded only a meagre sum of Rs.40,000/- towards mental tension and expenses incurred on treatment while the complainant has prayed for a sum of Rs.2,00,000/- towards physical compensation, a sum of Rs.1,00,000/- towards mental tension and a sum of Rs.1,00,000/- towards loss on account of death of newly born child and a further sum of Rs.82,000/- towards expenses incurred on treatment totalling to a sum of Rs.4,82,000. The learned Counsel for the complainant contended that the entire scenario of the treatment establishes the negligence on the part of the opposite parties, therefore, the appeal filed by the complainant may be allowed and the appeal of the opposite parties may be dismissed and the complainant maybe allowed compensation in toto as is claimed in the complaint.
After hearing of both the parties and perusal of the impugned order, we have found that there is no error in the order passed by the District Consumer Forum with regard to the deficiency in service committed by the opposite parties in the treatment of the complainant. The facts are evidenced on record that the consent for removal of the uterus was neither taken from the complainant which was necessary, nor even from the father of the complainant. The alleged consent from the father of the complainant shows that it was taken merely for operation and later on in that consent letter, it has
:6:
been added inserting thereby that he i.e. the father of the complainant is inclined to get the uterus removed. These words in the alleged consent dated 16-12-1995 are apparently visible to have been added subsequently for which there is no hesitation to held that there was no consent of the complainant or even of her father to get the uterus removed. It is in our view a serious negligence on the part of the opposite parties and the appeal filed by the opposite party may only be dismissed on this ground too but we have found further negligence too on the part of the opposite parties which is evidenced from the record of B.H.U. that the iliac artery was cut down by the opposite parties and cervical stump was left inside by the opposite parties and due to which the excess bleeding i.e. uncontrolled bleeding started and the patient was hastily discharged by the opposite parties. The District Consumer Forum has elaborately discussed these facts in the impugned order and we do not find any ground on record to interfere with the findings of the District Consumer Forum with regard to the deficiency in service by the opposite party to the complainant. So far the question of compensation is concerned, we are not convinced with the award of compensation of a meagre sum of Rs.40,000/- by the District Consumer Forum which, in our view, should have been awarded much more than the awarded sum because there has been gross negligence in conducting operation of the complainant and during the course of operation Bloos Vedsels were cut down by the opposite parties which are found closed later on at B.H.U. and artery named iliac was also cut down due to which excess bleeding could not be controlled and she was hastily discharged by the opposite parties from their hospital. The complainant is a newly married lady and due to damage of her uterus during the course of operation and after removal of her uterus she has been deprived of for giving birth to a child forever. She has also been deprived of in giving love and affection to her child. The things happened only due to gross negligence committed by the opposite parties in the operation of the complainant for which the complainant should be adequately compensated.
Hon’ble Supreme Court has held in the case of Charan Singh V. Healing Touch Hospital, (2000) 7 SCC 668 : AIR 2000 SC 3138 in respect to Mode of quantification of compensation that attempt should be made to serve the ends of justice by awarding compensation if the case is established.
:7:
Quantification would depend on facts and circumstances of each case and no hard and fast rules of quantification can be laid down for universal application. Consumer Forum should take into account all relevant factors and assess the compensation on the basis of legal principles, on moderation. Where the appellant, who had been an in-patient at the respondent Hospital, complained that due to negligence of its doctors his right side got paralysed and that they had illegally removed one of his kidneys and he also lost his job besides incurring huge amounts of money for treatment and his upkeep, claimed a compensation of Rs. 34 lakhs, held, not only the alleged harm, mental pain, agony, physical discomfort, loss of emoluments suffered by him but also the conduct of the respondents required to be taken into account to quantify the compensation. National Consumer Forum erred in rejecting his claim as “excessive”, “exaggerated” or “unrealistic” merely because he was drawing a salary of only Rs.3,000 plus allowances. National Consumer Forum further erred in relegating him to the forums below which could not grant relief beyond the limit of their pecuniary jurisdictions.
Hon’ble Supreme Court in the case of Nizam’s Institute of Medical Sciences Versus Prasanth S. Dhananka and others in respect to Determination of quantum of Compensation for Medical negligence has held that court/Consumer Forum should award “adequate compensation” by striking a balance between inflated and unreasonable demands of the victim and equally untenable denial of the opposite party. Various aspects of human life that need to be taken note of, stated.
In that case, negligence in surgical operation resulting in acute paraplegia (paralysis from the waist down), patient at that time was 20 years old and student of Engineering, case coming up before Supreme Court when he was aged 40 years and although employed as IT Engineer and earning Rs.28 lakhs per annum, confined to wheelchair and requiring a driver-cum-attendant due to the nature of his work, his complaint was decided by National Commission 10 years ago, in such circumstances, treating 30 years’ period to be reasonable for awarding compensation towards: (i) driver-cum-attendant, (ii) nursing care, etc. and (iii) physiotherapy, awarded a sum of Rs.7.2 lakhs, Rs, 14.4 lakhs and Rs.10.8 lakhs respectively. Moreover, lump sum amounts of Rs.25 lakhs awarded towards future continuous medical aid and Rs.25
:8:
lakhs awarded towards loss of future earnings making a total of Rs.50 lakhs. Some of the past medical expenses having already been defrayed by employer of his father, compensation for such expenses denied. Rs. 10 lakhs awarded towards pain and suffering. Thus, a total compensation of Rs. 1 crore 5 thousand awarded but rounded off to Rs. 1 crore together with interest @ 6% from 01-03-1999 (the date of decision of National Commission) till the date of payment.
Hon’ble Supreme Court has held in the case of Goving Yadav V. New India Insurance Co.Ltd., (2011) 10 SCC 683 at page 689
13. In R.D. Hattangadi V. Pest Control (India) (P) Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250] this Court while dealing with a case involving claim of compensation under the Motor Vehciles Act, 1939, referred to the judgment of the Court of Appeal in Ward V. James [(1966) 1 QB 273 : (1965) 2 WLR 455 : (1965) 1 All ER 563 (CA)], Halsbury’s Laws of England, 4th Edn., Vol 12 (p. 446) and observed: (R.D. Hattangadi case [(1995) 1 SCC 551 : 1995 SCC (Cri) 250], SCC p.556, para 9)
“9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii)other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomforft, disappointment, frustration and mental stress in life.”
In the same case the Court further observed: (R.D. Hattangadi case [(1995) 1 SCC 551 : 1995 SCC (Cri) 250], SCC p. 557, para 12)
:9:
“12. In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be view with objective standards.”
Looking into the law as aforesaid, we are in agreement that a sum Rs. 3,00,000/- is sufficient to compensate the complainant in all respect of her demand towards medical expenses as well as the compensation regarding mental tension etc. The appeal filed by the opposite party is liable to be dismissed and the appeal filed by the complainant is liable to be allowed.
It is worth mention here that the opposite parties have contended that the District Consumer Forum did not consider the case of the opposite parties pertaining to the insurance of the opposite parties and wrongly fixed the liability of the opposite parties but since this plea has not been raised in the memo of appeal by the opposite parties, we are not inclined to accept this much argument. More so the perusal of the written statement of the opposite party before the District Consumer Forum though reveals that in para 22 of the written statement it was stated by the opposite party that the profession of the opposite party no.2 is insured by the National Insurance Company Limited, Mau with effect from 04-12-1995 to 03-12-1996 but there is no evidence stated to have been filed by the opposite party before the District Consumer Forum showing thereby that any such policy was issued by the National Insurance Company Limited in favour of the opposite party, nor any application seems to have been moved by the opposite party before the District Consumer Forum to array the National Insurance Company Limited as party, therefore, at this appellate stage even where this plea has not been raised in the memo of appeal, the plea is not tenable.
ORDER
The Appeal No. 843/2010 is hereby dismissed. The Appeal No. 921/2010 is allowed. The impugned judgment and order of the District Consumer Forum is modified to this extent that the opposite party shall pay a sum of Rs. 3,00,000/- ( Rupees Three lacs only) to the complainant alongwith
:10:
interest @ 6% per annum from the date of complaint till the date of payment. The aforesaid amount shall be paid by the opposite party to the complainant within a period of two months failing which the interest awarded 6% shall be calculated @ 12% per annum.
The original judgment shall be placed on the record of Appeal No. 843/2010 with its copy to be placed on the record of other Appeal No. 921/2010.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
( R. C. CHAUDHARY )
MEMBER
pnt
