Ekamjot Singh and others complainants has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties be directed to make the payment of Rs.10,00,000/- to them immediately on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties alongwith Rs.5,000/- as litigation expenses, in the interest of justice.
2. The case of the complainants in brief is that the complainant no.1 and 2 are minors and they are unable to file and pursue the present complaint personally and as such their father with whom the minors are residing and who has no adverse interest qua the interest of the minors. Smt.Kulwinder Kaur was mother of complainant no.1 and 2 wife of the complainant no.3. She was having qualification of BA and BCA. She had registered her name in Employment Exchange for grant of job and interview letter was also issued by the office of Employment Exchange Gurdaspur to her after her untimely death. She was 24 years of age and was pregnant and got admitted at Civil Hospital Batala for the delivery of child on 14.2.2015 and file No.749 was prepared by the opposite party no.1. On 20.2.2016 at about 1.32 PM she gave birth to complainant no.2 with major operation (caesarian) and after that she was brought on bed, but blood was coming out from the stitches made by the opposite party no.1 and her condition became critical after birth of complainant no.2. The complainant and his family member approached the opposite party no.2 time and again and requested for taking care of Smt.Kulwinder Kaur but of no use, neither the opposite party no.2 taken care of the patient, nor she advised her husband to took her to some other hospital, and health of the patient went on deteriorating. Ultimately at 11 pm the opposite party no.2 referred the patient at Guru Nanak Dev Hospital by saying that the patient is suffering from blood reaction. When her husband took his wife to Guru Nanak Dev Hospital Amritsar where the doctors told that “patient was brought dead to Bebe Nanki Hospital from (referred from Batala) at 1.45 PM dated 21.2.2015. Thereafter her family members brought the dead body of Smt.Kulwinder Kaur at Civil Hospital Batala and requested for the post mortem of the dead body, but the concerned staff refused to do so by saying that post mortem is conducted only in accidental death cases, and then the deceased was brought to her matrimonial home where she was cremated. The ladies who change her clothes etc. before cremation of bathed her told that veins had came out and her body was fully stained with blood. Infact the opposite parties have not treated the deceased in a scientific line and have not provided proper treatment to the deceased, as a result of which the deceased died. In this way the opposite parties have committed medical deficiency as well as negligence and deficiency on the part of the opposite parties. The opposite party no.2 had not operated the deceased with full care and caution and has not properly looked after her and operated the deceased in a negligent manner, which resulted into untimely death of the deceased. They further pleaded that they have suffered much more and complainants no.1 and 2 have lost their mother while the complainant no.3 had lost his life partner. They had suffered physically, mentally as well as financially and this irreparable loss suffered by the complainants on account of negligence of the opposite parties cannot be measured or compensated in terms of money. The opposite parties are liable to compensate the complainant and are entitled to Rs.10,00,000/- atleast and the opposite parties are liable to pay the same. Thus, there is deficiency in service on the part of the opposite parties. Husband of the deceased moved applications to various higher authorities for the redressal of his grievances to Civil Surgeon Gurdaspur, SSP Batala, Deputy Commissioner Gurdaspur, Chief Minister Punjab, Chief Justice of Punjab and Haryana, but of no avail. Hence this complaint.
3. Notice of the complaint was issued to opposite parties. Opposite party no.1 and 3 has appeared and filed their joint written reply by taking the preliminary objections that the present complaint is not maintainable; the complaint is bad for non joinder of necessary parties; the present complaint is liable to be dismissed as it is prima facie false and frivolous lacking any expert report. On merits, it was submitted that Kulwinder Kaur deceased was admitted in Civil Hospital Batala on 14.2.2015 as she was in advance stage of pregnancy by Dr.Anju (Gynecologist). On 20.2.2015 as deceased Kulwinder Kaur was unable to deliver a child through normal means so L.S.C.S. was conducted by opposite party no.2 and a alive male healthy child was born at about 1.32 P.M. on 20.2.2015. The operation was successful and the patient was hence shifted to the Indoor ward from operation theatre. In the indoor ward the deceased was under the supervision of nurses and her relatives were also there. The shift of opposite party no.2 was then over after 2 P.M. and hence the deceased remained under supervision of another Gynecologist namely Dr.Anju and staff nurse Neelam Bala etc. till 8 PM. During the abovesaid period the complainant never made any complaint to anybody regarding any physical pain or unhealthiness nor any of her relative or attendant did. At about 8.50 PM when the staff nurses namely Smt.Rekha and Sukhjinder Kaur etc. of night duty again visited the deceased for giving her routine medicines and injections. They found that the face of the deceased had become red but her vitals i.e. B.P. pulse and temperature were normal. The abovesaid staff nurses, Dr.Rohit Kumar, E.M.O. and opposite party no.2 gave the best medical treatment to Kulwinder Kaur deceased and afterwards she was referred to Guru Nanak Dev Hospital, Amritsar. It was further submitted that the deceased was referred to Guru Nanak Dev Hospital, Amritsar instantly on 11.50 P.M. The Doctors of Guru Nanak Dev Hospital told the complainant that the “patient was brought dead to Babe Nanki Hospital from (referred from Batala ) at 1.45 AM dated 21.2.2015” It was next submitted that the opposite party had done her post graduation in Gynecologist and since 2000 she is working as Gynecologist at Civil Hospital, Batala. The opposite party no.2 has done more than 3000 caesarian operations during the abovesaid period without a single complaint. Moreover opposite party no.2 was awarded certificate of appreciation on Ist March, 2011 at Mohali and she stood second in the state of Punjab and conducting caesarian operations (2010-2011) by the department of Health and Family Welfare. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
4. Opposite party 2 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable and the present complaint is liable to be dismissed as it is prima facie false and frivolous lacking any expert report. On merits, opposite party no.2 taking the same facts which have been mentioned by the opposite party no.1 and 3.
5. Counsel for the complainants tendered into evidence affidavit of Randip Singh Ex.C1, alongwith other documents Ex.C2 to Ex.C5 and closed the evidence.
6. Counsel for the opposite party no.2 tendered into evidence affidavit of Dr.Tejinder Kaur Ex.OP-2/1 alongwith other documents Ex.OP-2/2 to Ex.OP-2/35 and closed the evidence.
7. Sh.Rakesh Kumar Sr.Assistant Civil Hospital Batala opposite party no.1 and 3 tendered his affidavit Ex.OP-1,3/1 alongwith other documents ex.OP-1,3/2 to Ex.OP-1,3/3 and closed the evidence.
8. We have intently heard the learned counsels for the complainant and also for the opposite parties on the points of ‘admittance’ and ‘maintainability’ and other ‘law’ as applicable to the present complaint under the Consumer Protection Act, 1986 (hereinafter called ‘the Act’). Although, we have thoroughly examined the available evidence on the records so as to interpret the meaning and purpose of each document and also the scope of adverse inference for of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels of the present contestants; we are inclined to withhold our findings on the present complaint as the learned counsel questioned the ‘maintainability’ of the present compliant without the prior sanction of the Punjab Health Systems Corporation U/s 15(2) of the Punjab Health System Corporation Act, 1996 and also without the corporation being enjoined as a necessary party to the present lis and citing thereby the orders of the honorable State Commission, Punjab; in FA # 1473, 1480, 1481 & 1538 of 2011 titled Secy. Department of Health & Family Welfare & Ors vs. Sukhdev Singh & Ors; 2015(4) CLT 424; in which the complaint was ordered to be dismissed without prejudice to the complainants’ rights to file a fresh complaint on the same cause of action after obtaining the necessary sanction of the corporation U/s 15(2) of the 1996 Act.(Para9 & 10). We have respectfully studied the cited judgment of our Hon’ble State Commission and the same has indeed enriched us on the legality of the subject matter. We are deductively envisioned on the subject by virtue of the contents of the paragraphs ‘7’, ‘9’ and ‘10’ that read as:
“7. It was submitted by the learned counsel for the opposite parties that the complainant has wrongly described opposite party No.3, as Primary Health Centre, whereas it is Community Health Centre and the same is under the Punjab Health Systems Corporation incorporated under the Punjab Health Systems Corporation Act, 1996 (in short, “the 1996 Act”). Opposite parties Nos.4 to 6 were the employees of that Corporation and the complaint against opposite parties Nos. 1 and 2 has been filed on the ground that they are vicariously liable for the medical negligence on the part of opposite parties Nos.4 and 6 assuming that they were the employees of opposite parties Nos.1 and 2, which is not the case. The complaint was not competent without the previous sanction of the Corporation, as provided by Section 15 (1) of the1996 Act. That question has already been decided by this Commission in FA No.744 of 2006 decided on 3.8.2011 (Vinod Kumar v/s State of Punjab and others). The complaint was liable to be dismissed by the District Forum, as not maintainable. It failed to exercise the jurisdiction so vested in it. Accordingly the appeal is to be allowed and the order of the District Forum is to be set aside on this ground alone.
- The complainant himself proved on the record the receipt, vide which he deposited Rs.430/- as the operation charges, which is on the backside of the Admission Record Mark-A. As per that Record, Balwinder Kaur, wife of the complainant, was admitted in CHC, Tanda and the same was under the Punjab Health Systems Corporation. Even in the Schedule to the 1996 Act, this CHC is mentioned and the same is under the Punjab Health Systems Corporation As per Section 12 of the 1996 Act, the control and management of all dispensaries and hospitals with dispensaries and non-teaching hospitals as per schedule appended to the 1996 Act are to stand transferred to and vest in the Corporation and are to work under its administrative control. Thus, all the staff of CHC, Tanda including opposite parties Nos. 4 to 6 and the other staff mentioned in the complaint, was under the control of the Corporation. For all intents and purposes they were the officer/servants of the Corporation. Section 15 of the 1996 Act reads as under:-
“(1) No suit for prosecution shall be entertained in any court against the corporation or against any officer or servant of the corporation or person acting under the order or direction of the corporation for anything which is in good faith done or intended to be done under this Act or any regulation made there under.
(2) No suit, prosecution or other legal proceedings shall lie against any officer or servant of the corporation for an act done of purporting to be done under this Act or any regulation made there under without the previous sanction of the corporation”.
This Section has already been interpreted in Vinod Kurnar's case (supra) by this Commission. It was held therein that no proceeding can be initiated against the officers/servants of the Punjab Health Systems Corporation without the prior sanction of the Corporation. In view of that observation, the consumer complaint filed against their senior Medical Officers and Orthopaedician of Civil Hospital, Abohar, which was also included in the schedule to 1996 Act, was dismissed, as not maintainable.
10. Therefore, the present complaint was not maintainable without the prior sanction of the Corporation and the Corporation itself was also a necessary party. The same was liable to be dismissed on that score alone. Accordingly the appeals filed by the opposite parties, namely, First Appeal Nos.1473, 1480 and 1481 of 2011 are allowed and the order of the District Forum is set aside. The complaint filed by the complainant is dismissed without prejudice to his rights to file a fresh complaint on the same cause of action after obtaining the necessary sanction of the Corporation under Section 15 (2) of the 1996 Act. The appeal filed by the complainant (FA No.1538 of 2011) becomes infructuous and is dismissed as such.’’
9. In the light of the all above, we find that the present complaint is not maintainable without the prior sanction of the State Health Systems Corporation who will also be a necessary party to the lis. Thus, we ORDER for the dismissal of the present complaint without prejudice to the complainant’s rights to file a fresh complaint on the same cause of action but by adopting the prescribed procedure as laid down under the Punjab State Health System Corporation Act, 1996 Act.
10. Copy of the order be communicated to the parties free of charges.
After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
October 25,2017. Member
*MK*
