These revision petitions have been filed by the petitioner C.Pramod Kumar & 2 Ors. in RP No.4812-4813 of 2013 and Amreshwara Nursing Home & Anr. in RP No.3600 of 2014 against the order dated 2.9.2013 of the State Consumer Disputes Redressal Commission, Karnataka, passed in Appeal No.1050 & 1123 of 2011.

2.      The complaint in brief is that Dr. Amareshwara. T is the owner of the 1^st Respondent Nursing Home.  The respondent No.2 Dr. T.Udayashankar is the Orthopaedist who conducted the operation for fracture of both the bones of left forearm of Smt. Udayavani at the 1^st respondent Nursing Home on 13.04.2006.  The respondent No.3 Dr. Jambanalli Govindaraj is the Anaesthetist who administered anaesthesia.  The 1^st complainant is the elder brother of the deceased Smt. Udayavani who by depositing Rs.13,000/- admitted her at 1^st respondent Nursing Home. 

3.    It is the case of the complainant that the patient died on the operation table itself due to excessive dose of anaesthesia though when the hospital and doctors informed about the death, the patient was taken to another hospital where she was declared “brought dead”.  The complainants filed complaint with the Medical Council of Karnataka and in their investigation it was found that the death was due to cardiac arrest by excessive dose of  anaesthetic drugs.  The consumer complaint was filed before the District Consumer Disputes Redressal Forum, Bellary.  The complaint was resisted by the opposite parties.  However, the District Forum partly allowed the complaint vide its order dated17.02.2011 as under:-

“The complaint filed by the complainants is partly allowed, as against respondent No.3.

      The complainant No.2 is entitled to recover sum Rs.1,00,000/- (rupees one lakh only) with interest @ 6% p.a. from the date of complaint i.e. 21.08.2009 till realization from the respondent No.3. 

      The complainant No.2 is also entitled to recover sum of Rs.1,000/- (rupees one thousand only) towards cost of the proceedings, from the respondent No.3.

      The Respondent No.3 is liable to pay the entire amount ordered and interest to the complainant No.2, within two months from the date of this order.

      The complainant No.1 and 3 shall deposit the amount of Rs.1,00,000/- in the name of the complainant No.2 Kum Chandana as Fixed Deposit in a Nationalized Bank till she attains the age of majority and shall produce the copy of Fixed Deposit Receipt within one month of receipt of the compensation amount.

      The complaint filed by the complainants as against the Respondent No.1 and 2 is dismissed.

      Inform the parties accordingly.”

4.      Aggrieved by the order of the District Forum , the complainants as well as respondent No.3 /opposite party No.3 preferred separate appeals before the State Commission.  The State Commission vide its order dated 02.09.2013 dismissed the appeal No.1050 of 2011 and allowed the appeal No.1123 of 2011 of the complainants and passed the following orders:-

      “Appeal No.1050/2011 filed by the OP 3 is dismissed.  Appeal No.1123/2011 filed by the complainants is allowed in part and modified by enhancing the compensation.  The OPs are jointly and severally liable to pay Rs.4,47,000/- with interest at 6% p.a. from the date of filing of the complaint i.e, 21.08.2009 till its realization and to pay the same with cost as awarded by the DF with accrued interest within 30 days from the date of receipt of this order.

      Out of Rs.4,47,000/- the OPs are directed to pay Rs.1,00,000/- to complainant No.3, which includes a sum of Rs.10,000/- awarded towards consortium to the husband of the deceased Smt. Udayavani for the maintenance of his daughter.

      The remaining balance amount of Rs.3,47,000/- is to be deposited by the complainant No.3 in a Nationalized Bank, in the name of his daughter, till she attains the age of majority.  Complainant No.3 is entitled for the interest accrued out of the amount deposited in the FD. 

      Complainant No.1 who is the brother of the deceased is not entitled for any compensation.

      The amount in deposit by the appellant/OP 3 in Appeal No.1050/2011 shall be transferred to the DF to the needful.

      The original of this order is kept in Appeal No.1050/2011 and a copy of it shall be placed in Appeal No.1123/2011.”

5.      Aggrieved by the above order of the State Commission, the complainants preferred revision petition No.4812-4813 of 2013 and the opposite parties preferred revision petition No.3600 of 2014.  

6.      Heard the learned counsel for both the sides and perused the record.

7.      The learned counsel for the complainants stated that they have filed the revision petition only for enhancement of the compensation.  He argued that the State Commission has taken monthly income of the deceased at Rs.3,000/- per month, which is very meagre and the contribution to the family as a house wife is much more.  The deceased was a house wife and had a small daughter and she died at a very young age of about 23 years.  To emphasise the contribution of the house wife, learned counsel referred to the judgment of Hon’ble Supreme Court in Arun Kumar Agrawal & Anr. Vs. National Insurance Company Limited, (2010) 9 SCC 218, and specifically relied upon the following portion of the judgement:-

35. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the  2housewife…………………………..”

8.      On the basis of the above observation of the Hon’ble Supreme Court, it was argued by the learned counsel that for calculating the compensation, the State Commission should have taken more income per month of the deceased. 

9.      To emphasise the same point, the learned counsel further mentioned the judgment of Hon’ble Supreme Court in Jaswinder Singh and Anr. Vs. Santokh Nursing Home & Ors., (2012) 12 SCC 550, wherein the view expressed by Hon’ble Apex Court in Arun Kumar Agrawal & Anr. Vs. National Insurance Company Limited, (supra) has been reiterated.

10.    Learned counsel for the complainants further stated that the deficiency and negligence on the part of the opposite parties is proved by the fact that the report dated 11.12.2008 of the Medical Council of Karnataka has clearly confirmed the finding that the cause of death was a cardiac arrest which was caused by excessive use of anaesthetic drugs.  Later on, the concerned doctor filed appeal before the Medical Council of India and the Medical Council of India finally remanded the matter to Medical Council of Karnataka for deciding the complaint afresh.  On the basis of the opinion of the expert Dr. S.Chaya, the Medical Council of Karnataka finally revised its finding and accepted report of the expert Dr. S.Chaya stating that the cause of death might be sudden high blood pressure causing cardiac arrest.  The learned counsel further stated that Dr. S. Chaya, in the expert report has not even observed as to what drug was given for anaesthesia and what was the dose that was given.  The Medical Council of Karnataka accepted the report only to save the doctor and the hospital.  The complainants have filed an appeal against revised order of Medical Counsel of Karnataka.  Therefore, till the representation is pending, the revised report of the Medical Counsel of Karnataka dated 21.03.2013 cannot be accepted.

11.    On the other hand learned counsel for the opposite party No.2 stated that the District Forum had awarded a compensation of Rs.1,00,000/- to the complainants even though no negligence was proved on the part of the opposite parties.  In this regard, the learned counsel referred to the following observations of the District Forum:-

“12.  Now we have to see whether the complainants have proved the allegations made by them against the Respondents with cogent and convincing evidence.  However, on perusal of the evidence placed by the Complainants before this Forum, it is found that the Complainants have not proved their case against the Respondent No.1 and 2 with strong, clear and convincing evidence.  The main allegation against the Respondent No.1 is that it is not having standard infrastructure prescribed for private Nursing Homes and it does not have fully equipped operation theatre.  In this regard, the Complainants must show as to what are the standard infrastructures prescribed for private Nursing Homes and what are the equipments that are to be installed in the operation theatre and what are the infrastructure and equipments that were lacking in the hospital and operation theatre of the 1sr Respondent.  But they have not provided all these information with proof/evidence.  That being so, imaginary grounds it cannot be construed that the 1^st Respondent is not being required infrastructure and the operation theatre was not fully equipped.  The Complainants could have proved the above allegations made against the 1^st Respondent by taking a commission of expert/experts in the field and asking them to make a commission enquiry at the 1^st Respondent hospital and to give report whether the said hospital is having or not having standard infrastructure required of a private Nursing Home and whether the operation theatre was fully equipped or not. But that is not being done by the Complainants.  Therefore, practically there is no evidence which proves the allegations made by the Complainants against the 1^st Respondent except a mere whisper in their complaint which cannot be considered as evidence against the 1^st Respondent.  This opinion is substantiated by the verdict given by the Karnataka Medical Council after making an enquiry on the complaint given by the Complainants before them against the Respondents.  The said Council in its order, the copy of which is marked as Ex.P.34, exonerated the Respondent No.1 and 2 holding that there was no convincing evidence against them for negligence. The said Medical Council consist of persons who are supposed to be the experts in the field and hence, proper weight has to be given to their opinion as the one arrived at after making proper enquiry into the case.  Considering all these aspects, we are of the opinion that the Complainants have failed to make out a case of professional negligence on the part of the Respondent No.1 represented by Dr. T.Amareshwara.”

12.    From the above, it is clear that the District Forum did not find any fault with the hospital.  The question of any compensation will only arise if the negligence is proved against the doctor or the hospital.  The State Commission has not considered the issue of negligence and has only enhanced the quantum of compensation.  The only thing that the State Commission has observed about the hospital is the following:-

“13. OP 1 is a Nursing Home and OP 2 is the proprietor and OP 3 is the consulting doctor of OP1. It is the duty on the part of OP 1 Nursing Home to see as to who is the doctor is the best to conduct the operation on the patient and who is the Anesthetist to administer the Anesthesia.  Since OP3 is not a senior Anesthetist, there is a duty cast upon on the part of OP 1 to call for the senior Anesthetist to administer the drug before taking the deceased in to Operation Theater which might have been saved the patient. The DF held that, the negligence on the part of  OP3 only which in our opinion is not correct and in our opinion Ops 1 and 2 are also liable to fasten with the liability.  They are jointly and severally responsible for the negligence in not conducting the operation.  By the time the OP Nursing Home conducted the surgery with the help of Ops 2 and 3, the deceased might have with heavy bleeding which may be the cause for her death.  Therefore, we hold that, the appellant in Appeal No.1050/2011 has utterly failed to prove that there is not negligence on his part and on the other hand the complainants have proved that the Ops 1 to 3 are jointly and severally negligent in conducting the operation resulting in death of the deceased which might have been due to excess dosage of anesthesia.”

13.    It was further argued by the learned counsel for opposite party –hospital that the earlier report of Medical Council of Karnataka has now been set aside by the revised report of the Medical Council of Karnataka, which is based on the report of Dr. S.Chaya.  This report has clearly exonerated doctor and hospital and nothing adverse has been found against them.  Thus, the learned counsel summed up that the District Forum has not found negligence on the part of the hospital and the State Commission has not examined the issue of negligence on the part of the doctors and finally the Medical Council of Karnataka has also found no negligence on the part of the doctor or the hospital.  There is no ground on which any negligence or deficiency can be alleged on the part of any doctor or on the part of the hospital.  Once negligence is not proved, there should be no question of any compensation to the complainants.

14.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.  So far as the revision petition filed by the complainants is concerned, the same has been filed only for enhancement of the compensation.  The fact is that the District Forum awarded a compensation of only Rs.1,00,000/-, which has been enhanced to Rs.4,47,000/- by the State Commission.  It is true that the role of a house wife cannot really be assessed in monetary terms, however, some approximation is to be made to award the compensation.  The State Commission came to the conclusion for a monthly income of Rs.3,000/- per month, whereas the District Forum had only awarded lump sum amount of Rs.1,00,000/-. Clearly, the State Commission has adopted more objective approach in deciding the compensation.   It is also a fact that the original report of the Medical Council of Karnataka has now been reversed by another report dated 21.03.2013 where the death by excessive dose of anaesthetic drugs has not been confirmed. Though the appeal filed by the complainant against the second report dated 21.03.2013 is pending, however, this fact has to be taken into account for deciding atleast the compensation. Keeping all these facts in view, I do not find any ground to further enhance the compensation.  Consequently, the revision petition Nos.4812-4813 of 2013 filed by the complainants/petitioners are liable to be dismissed.

15.    In respect of revision petition No.3600 of 2014 filed by the opposite party No.1 & 2, it is seen that first of all the order of the State Commission dated 02.09.2013 is for all the opposite parties jointly and severally.  However, only the opposite party Nos.1 & 2 have preferred present revision petition.  Thus order of the State Commission has become final qua the opposite party No.3 Dr. Jambanalli Govindraj.  Opposite party No.1 is the Nursing Home and opposite party No.2 is the son of the proprietor of Opposite party No.1 Nursing Home, as well as the Orthopaedist, who actually performed the operation.  The case of the complainants is that the death of the deceased occurred on the operation table due to excessive dose of anaesthesia.  The first report dated 11.12.2008 of Medical Council of Karnataka corroborated this fact.  The second report dated 21.03.2013 of Medical Council of Karnataka had not confirmed the death due to excessive dose and given the cause of death as high blood pressure.  This clearly means that no report has given adverse finding with respect to orthopaedic surgeon who performed the operation.  Even the District Forum in its order dated 17.02.2011 has only found opposite party No.3 i.e. anaesthetist as guilty of negligence and the District Forum dismissed the complaint against the opposite party No.1 and opposite party No.2.  The State Commission in its order has treated opposite party No.2 as the owner and proprietor of opposite party No.1 Nursing Home, whereas the opposite party No.2 is the son of the proprietor of opposite party No.1, Nursing Home, though he performed the operation as orthopaedic surgeon.  It clearly means that the State Commission has also not found opposite party No.2 Dr. T.Udayashankara as guilty of negligence in operation.  Accordingly, in my view, there is no evidence that the opposite party No.2 was also negligent and therefore, the District Forum had rightly dismissed the complaint against the opposite party No.2 in this regard. Based on the examination, the order of the State Commission has to be modified. 

16.    So far as the negligence on the part of opposite party No.1 Nursing Home is concerned, though the District Forum has not found any negligence on the part of the opposite party No.1, but the State Commission has found the opposite party No.1 also guilty of negligence in the matter.  Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National heart Institute, IV (2004) CPJ 40 (SC) held the following:-

“Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital.  Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient.  It is the duty of the hospital to satisfy that there was no lack of care or diligence.  The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities.”

17.    From the above, it is clear that the hospital cannot wash its hands off from the loss and injury suffered by the patient even if the negligence is only of the consultant doctor.  In the present case, the hospital has taken overall responsibility for the operation and it can not only be seen providing space for operation.  Hospital has to ensure that the consultants engaged by the hospital are of sound medical knowledge and having professional ethics.  In the present case, clearly the consultant (anaesthetists) engaged by the hospital, administered excessive dose of anaesthesia which caused death of the complainant’s  patient.  The same has been confirmed by the first report dated 11.12.2008 of Medical Council of Karnataka, though second report  dated 21.03.2013 of the medical counsel of Karnataka has given cause of death as high blood pressure based on the report of the expert Dr. S. Chaya, but I find force in the assertion of the learned counsel for the complainants that Dr. S.Chaya has given a cursory opinion without even indicating the drug administered and the dose thereof.  Moreover, complainants have preferred appeal against second report of the Medical Council of Karnataka and hence the second report given by the Medical Council of Karnataka cannot be accepted as a final report which prima facie does not appear to be an objective report.  Thus, order of the State Commission relating to fastening of liability also on opposite party No.1 Nursing Home seems to be a justified order in the facts and circumstances of the present case. 

18.    Based on the above discussion, revision petition Nos.4812-4813 of 2013 are dismissed.  So far as the revision petition No.3600  of 2014 is concerned, the order of the State Commission dated 02.09.2013 in FA No.1050 of 2011is modified to the extent that opposite party No.2 Dr.T.Udayashankara shall not be liable to pay any compensation or damages to the complainants.  With this modification, the order of the State Commission dated 02.09.2013 is confirmed.