Delhi

StateCommission

FA/12/525

RAJ KARAM SINGH - Complainant(s)

Versus

APOLLO HOSPITAL & ANR. - Opp.Party(s)

09 Jul 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:09.07.2019

                                                                                                              

                                                                   Date of decision:15.07.2019

 

First Appeal No. 525/2012

 

IN THE MATTER OF

 

Raj Karan Singh

S/o Lt. Sh. Dori Singh

Flat No. T-2, Palika Nilay,

R.K. Ashram Marg,

Gole Market,

New Delhi-110001….Appellant

 

VERSUS

 

Inderprastha Apollo Hospitals,

Through its Director in Charge,

Sarita Vihar, Mathura Road,

Delhi-110076      

 

Apollo Group Hospitals,

5^th Floor, Apollo Hospitals,

21, Greams Road,

Chennai-600006                                                                 ….Respondents

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Ajay Proxy Counsel for the Sh. Deepak Kohli Counsel for the appellant

                   Sh. Anand Jain, Counsel for the respondents

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           The complaint filed by Sh. Raj Karan Singh against the Indraprastha Apollo Hospital having been disposed by the Consumer Disputes Redressal Forum-VII, Delhi, on 17.04.2012 holding the hospital negligent in the matter of treatment to Ms. Anju Rani, complainant’s daughter and awarding the compensation of Rs. One Lakh, the complainant, not being satisfied with the compensation awarded, has filed an appeal before this Commission for short appellant under Section 15 of the Consumer Protection Act 1986, the Act, against the said hospital, hereinafter referred to as respondent praying for the enhancement of compensation, the negligence on the part of the OP/respondent having been established by the District Forum.

 

2.           Facts of the case necessary for the disposal of the appeal are these.

 

3.           Km Anju, the daughter of the complainant was under the treatment of the OP/respondent hospital for the purpose of dialysis since 22.06.2005. Things went smooth till 23.12.2006. On that day while undergoing dialysis the patient and the complainant noticed that the dilator used for the purpose was not washed with water properly and was in bad shape and accordingly reported to the technician doing the dialysis, but no heed was paid to their appeal. The technician continued the process. Fall out of that was that the patient started feeling breathlessness resulting in state of faint and coma. Her condition in the ICU where she was taken consequent upon her deterioration did not improve. She was in ICU for 47 days from 23.12.2006 till her end on 08.02.2007. The allegation of the complainant is that even in the ICU, the daughter of the complainant was treated recklessly and negligently. The attitude of the technicians, doctors and other staff of the OP hospital was quite rude and unprofessional. The concerned staff of the OP hospital had done the tracheotomy below the C5 level and even at the time of doing of the same, the deceased started bleeding. The staff did not perform suctioning to the patient properly. The fistula was inserted in the arm of the patient which was also got spoiled due to the negligence of the staff of the OP hospital. The complainant pointed out from time to time all these dereliction of services to the concerned doctors and senior staff/supervisors but none of them paid any attention and kept on assuring the complainant that these type of misconduct would not repeat. The end result was that the patient passed away all due to the negligence of the OPs.

 

4.           In these circumstances a complaint was filed by the complainant before the District. Forum for redressal of his grievances which complaint stood disposed of observing that allegation regarding negligence on the part of the OP hospital and the treating doctor established and directing the OPs to pay to the complainant as a consequence thereof an amount of Rs. One Lakh as compensation.

 

5.           So far, so good.

 

6.           The OPs had filed no appeal assailing the said order holding them guilty of negligence which means, and to put it differently, orders of the District Forum qua them (OPs) has attained finality. However the complainant/appellant has preferred this appeal for modification of the order praying for enhancement of compensation awarded. The grounds for the enhancement of the claim are that the orders passed by the District Forum is erroneous on facts and law. Secondly the forum has not given reasons nor set out any principles for awarding of the compensation. Thirdly awarding the compensation has to be commensurate and consistent with the suffering caused. Fourthly awarding of a meagre penalty would continue to act in such an irrational and irresponsible manner. Fifth it is settled law that compensation under Section 14(1)(d) of the Consumer Protection Act as amended up to date specifically empowers the Consumer Forum to pass order, to award compensation and punitive damages by taking into consideration realistic view of the whole matter and award compensation which should be reasonable and just and proportionate to the suffering undergone by the appellant. The District Forum has failed to follow the settled law for awarding compensation.

 

7.           The respondents were noticed and in response thereto they have filed their reply resisting the appeal stating that there exists no negligence on their part. They have submitted that even the expert opinion obtained from a Govt. hospital, namely, Safdarjung hospital does not hold them negligent. Secondly, they have paid the compensation to the complainant which amount has been encashed and having done that the complainant is estopped from raising the issue regarding quantam of compensation. Thirdly no case has been made out for the enhancement even on merit.

 

8.           This matter was listed before this Commission for final hearing on 09.07.2019 when counsel from both sides appeared and advanced their arguments in support of their pleadings, the appellant for the enhancement of the compensation based on the grounds taken in the appeal and the respondents for the dismissal of the appeal on the ground that there exists no good ground for the compensation as the allegation against them regarding negligence is not fully made out and secondly, on the ground that the complainant by encashing the compensation of Rs. One Lakh is estopped from precipitating the issue.

 

9.           The orders of the District Forum holding the OPs negligent not having been assailed by way of appeal has attained finality qua the OPs and therefore I do not deem it necessary to go into the question on merit of the case regarding negligence on the part of the OPs. I may accordingly proceed to deal with the issue relating to awarding of compensation. The patient was 24yrs old female child. Her end was owing to the negligence of the OP/respondent hospital. She had before her entire life and career. Further the complainant and his family were subjected to mental agony due to the departure of the patient. These factors would clearly show that the compensation awarded is too meagre for the suffering caused to the complainant.

 

10. Under these circumstances I am of the considered view that the appeal deserves to be accepted. Having reached to this conclusion the point for determination is as to what should be the compensation in the facts and circumstances of the case. District Forum has awarded Rs. One Lakh which amount appears to be too meagre to be adequate.

 

11. The Consumer Protection Act 1986 empowers the consumer to claim and the Consumer Forum to award compensation in the event of deficiency of services, causing harassment, mental agony and the prayer has been made for the compensation of 28 Lakhs plus the litigation cost. It is a settled position of law that there exists no straight jacket formula to decide and determine the compensation as that would depend upon facts and circumstances of each case. As per the authority in the matter of Glen Appliances Pvt. Ltd. and Anr. Versus Col. A.S. Vaid as reported in I [2012] CPJ 289 CHD the compensation on account of mental agony and harassment has to be commensurate with loss or injury. The Hon’ble NCDRC in the matter of Vijay Kumar Burman versus Baghela Gas service as reported in IV [2014] CPJ 362 (NC) is pleased to hold that the compensation has to be fair and equitable, to make good, as far as money can do, loss suffered by the family due to the alleged inaction and not as bonanza or largesse. The Hon’ble Supreme Court of India has discussed in the matter of Malay Kumar Ganguly versus Sukumar Mukherjee (Dr) as reported in III [2009] CPJ 17 (SC) the principles providing that a person is entitled to damages as nearly as possible, sum of money which would have been if he had not sustained wrong. Finally the Hon’ble NCDRC in the matter of Surender Kumar Tyagi versus Jagat Nursing Home as reported in IV [2010] CPJ 199 (NC) is pleased to hold that the compensation has to be reasonable. It is not meant to enrich the consumers.

 

12. It is also an established law that under the Act, the consumer fora has jurisdiction to award compensation depending upon established facts and the circumstances of the case. While dealing with such contention in Charan Singh vs. Healing Touch Hospital & Ors (2000) 7 SCC 668, their Lordships observed that the consumer Forums are required to make an  attempt to serve the purpose of recompensating the individual but which also at the same time aims to bring about the qualitative change in the attitude of service provider. It was observed as under:-

 

"It is not merely the alleged harm or mental pain, agony or physically discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue - it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence."

 

13. Similarly in the matter of B.T. Sridhar vs. Vokkaligara Sandha - IV(2015) CPJ 215 (NC) - the Hon'ble NCDRC held as under:-

 

"Medical negligence leading to death, the NCDRC awarded the compensation of Rs.20 lakhs with 9% per annum."

 

14. Keeping in view the principles detailed above and the facts and circumstances of the case, the age of the patient, and other necessary and essential factors, I am of the considered view modifying the orders of the District Forum, that it would be just and reasonable to award compensation of Rs. 10 Lakhs (Rupees ten Lakhs) to the complainants for the suffering, mental pain and agony caused which has to be borne by the Apollo Hospital. This may serve the purpose of bringing about a qualitative change in the attitude of the hospitals for providing service to the human beings as human beings. Human touch is necessary; that is their code of conduct; that is their duty and that is what is required to be implemented.

 

15. The amount so awarded in the preceding paragraph be paid by the hospital being vicariously liable, as held by the Hon’ble NCDRC in the matter Post Graduate Institute of Medical Education and Research and Anr Versus Jasmine and ors as reported in III [2018] CPJ 72 (NC), within a period of two months from the date of receipt of the copy of this order failing which simple interest at the rate of 9% shall accrue till the realisation of the amount.

 

16. Ordered accordingly. Orders passed by the District Forum are modified to this extent. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information and records. File be consigned to records.

 

(Anil Srivastava)

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