Kamaljit Kaur complainant 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 her immediately on account of mental agony, physical harassment and deficiency in service on the part of the opposite parties alongwith litigation expenses, in the interest of justice.
2. The case of the complainants in brief is that her marriage was solemnized with Jasvir Singh about 6 years back. Out of this marriage a male child aged about five years was born. She again became pregnant. She got regular and routine checkups from the Civil Hospital Kahnuwan. The doctors gave anticipated date of delivery as 23.11.2016. Accordingly her family members took her to opposite party no.1 hospital on 23.11.2016. After check up, opposite party no.2 directed her husband and his other family members to take her to their house and to come after 3-4 days. On 24.11.2016, she was suffering from pregnancy pains and she was taken to opposite party no.1 hospital but the opposite party no.2 refused to admit her nor he checked up her. Left with no alternative, her family members took her to opposite party no.3 hospital at Gurdaspur where she was admitted on 24.11.2016 at about 7.30 P.M. On the next day i.e. 25.11.2016 she gave birth to a dead male child and the child in her womb had expired purely on account of negligence on the part of the opposite parties as she was suffering from delivery pains but the opposite parties did not care for the same and due to non admission her child in her womb died. She has further pleaded that opposite party no.2 is running his private hospital at Kahnuwan and it is his practice not to admit the patients at Civil Hospital Kahnuwan and to compel them to get admission in his private hospital with assurance of better treatment and facilities than Govt. Hospital. The same has been done with her but since she was taken to opposite party no.3 hospital where again she was not provided proper treatment as a result of which her child died before birth. Infact, the opposite parties no.1 and 2 have not given any treatment to her and the opposite party no.3 has also not treated her in a scientific line and within time as a result of which her child died in her womb. In this way, the opposite parties have committed medical deficiency as well as negligence and deficiency on the part of the opposite parties. Hence this complaint.
3. Notice of the complaint was issued to opposite parties. Opposite party no.1 and 2 has appeared and filed their joint written reply by taking the preliminary objections that the complaint is liable to be dismissed as the complainant is not consumer. No amount was paid to the opposite parties by the complainant so he does not fall under the definition of the consumer; the present complaint is not maintainable and the Consumer Forum has no jurisdiction to try and decide the complaint. On merits, it was submitted that the complainant got herself medically checked up and as per the ultrasound report the expected date of delivery was given as 24.11.2016 (+7 days). On 23.11.2016 the complainant came to the hospital i.e. opposite party no.1, the labour pains have not yet started and she was advised to come in the hospital when the labour pains will start. On 24.11.2016 the complainant came to the opposite party no.1 and 2 at about 7.50 PM and told the attending staff nurse that the child in the womb was not moving since morning. The attending nurse then checked the fetal heart by Fetal Doppler and the heartbeat of the baby child was not found and she was referred to Civil Hospital Gurdaspur on 24.11.2016 itself at 8.00 PM. Entry to this effect was made at serial no.517 dated 24.11.2016 at 7.50 PM. Thereafter attendants of complainant took her to Civil Hospital Gurdaspur where she remained admitted. The complainant remained with the opposite party no.1 for 10 minutes where proper procedure was adopted and she was referred to Civil Hospital Gurdaspur for further specialized treatment as there is no Gynecologist appointed at opposite party no.1. It was further submitted that the complainant was given proper care and advise at opposite party no.1 hospital when she was brought there at 7.50 PM and she was referred to Civil Hospital Gurdaspur at 8.00 PM on the same very day. There is no medically deficiency or negligence committed on the part of opposite party no.1 and 2 as alleged. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
4. Opposite party no.3 and 4 have appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable and no cause of action has accrued to file the present complaint against opposite parties no.3 and 4. On merits, it was submitted that Smt.Kamaljit Kaur resident of Ladhupur, P.O.Bhattian Tehsil and Distt.Guirdaspur was admitted in the Civil Hospital Gurdaspur on 24.11.2016 at about 9.42 P.M. and Dr.Chetna who is the Surgeon has given report intimation to her family that heart beat of child is not listening at present so before delivery the child has been died in womb. The opposite party no.3 has fully provided proper treatment to the complainant in the hospital after admission. However, the child has already weak condition in the womb and he was not fully developed, so due to this reason, the child died in the womb. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
5. Complainant tendered into evidence her own affidavit Ex.C1, of Jasvir Singh Ex.C2 and of Avtar Singh Ex.C3 alongwith other documents Ex.C4 to Ex.C22 and closed the evidence.
6. Counsel for the opposite party no.1 and 2 tendered into evidence affidavit of Dr.Iqbal Singh Ex.OP-1,2/1 alongwith other documents Ex.OP-1,2/2 and Ex.OP-1,2/3 and closed the evidence.
7. Dr.Chetna Officer of opposite parties no.3 and 4 tendered into evidence her own affidavit Ex.OP-3,4/1 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)
November 13,2017. Member
*MK*
