BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.

                                                                   Complaint No.: 244 of 2015.

                                                                   Date of Institution: 26.08.2015.

                                                                   Date of Decision: 18.06.2019.

Meena wife of Vikash, resident of village Bound, Tehsil Charkhi Dadri and District Bhiwani (now Charkhi Dadri) (Haryana).

..….Complainant

                                      Versus

1.       Dr. Anita Panwar, Panwar Maternity and Children Hospital, New Bharat Nagar, Rohtak Road, Bhiwani, Tehsil & District Bhiwani.

2.       Panwar Maternity and Children Hospital, New Bharat Nagar, Rohtak Road, Bhiwani, Tehsil & District Bhiwani through its Proprietor/Director.

3.       The National Insurance Company Ltd., having its Branch Circular Road, Bhiwani through its Manager (Policy No.351500/46/14/8/00000378).

…...Opposite Parties

                   COMPLAINT UNDER SECTIONS 12 AND 13 OF

                   THE CONSUMER PROTECTION ACT, 1986.

Before: -      Hon’ble Mr. Manjit Singh Naryal, President.

                   Hon’ble Mr. Parmod Kumar, Member.

                   Hon’ble Mrs. Saroj Bala Bohra, Member.

Present:       Shri Naveen Kaushik, Advocate for the complainant.

                   Shri VP Sangwan, Advocate for the OPs No. 1 & 2.

Shri R. K. Sharma, Advocate for the OP No.3.

ORDER:-

PER MANJIT SINGH NARYAL, PRESIDENT

                   Brief facts of the case are that the complainant was under care and supervision of the OP No. 1 from the very beginning of her pregnancy and she use to visit the OP hospital for regular checkup and treatment and the OP said that all is normal.  It is further alleged that at the time of delivery OP gave assurance of normal delivery and complainant admitted in OP’s clinic and a cash of Rs.10,000/- in advance was also deposited by the complainant for the same.  It is further alleged that at the time of delivery the OP doctor told that baby is not normal, so caesarian operation was done for the delivery, but after operation baby was abnormal and unconscious and complainant ask to OP doctor that what happened with baby and the OP doctor behaved very badly with the complainant and her husband and said that “I don’t know what happened and all of your destiny”.  It is further alleged that after that complainant and her husband went to Delhi for the treatment, but all in vain.  It is further alleged that the OP doctor failed to maintain the standard of care and complainant suffered damages on account of OPs dereliction of duty.  It is further alleged that there is clear cut dereliction of duty and failure and negligence in treatment on the part of the OP doctor for which complainant is entitled to get a compensation from the OPs on account of loss of consortium, loss of love & affection for whole life, mental & physical agonies caused and expenses incurred by complainant on treatment and other factors.  It is further alleged that a legal notice dated 8.5.2015 was served upon the OP through Shri Naveen Kaushik, Advocate, but to no effect.  Thus, there is deficiency in service on the part of OPs, hence, the present complaint.

2.                On appearance, the OPs doctor filed contested written statement denying all the allegations of the complainant.  It is alleged that complainant had not visited the nursing home for regular checkup and treatment and she never remained under observation and the advice given to the complainant was as per the investigation reports.  It is further alleged that caesarian operation was done as the mother had cervical dystocia and further trial of normal delivery would have endangered the life of both mother and baby.  It is further alleged that after the delivery the baby was fully conscious, but having respiratory distress, so he was admitted in neonatal intensive care unit within the hospital under care of in house neonatologist.  It is further alleged that the baby was discharged against medical advice by the relatives and was shifted to their choice of hospital in New Delhi in a proper transport facility under the care of neonatologist.  It is further alleged that complainant was stable throughout her stay in the hospital.  Hence, in view of the above facts, there is no deficiency in service on the part of the answering OP and as such, the complaint of the complainant is liable to be dismissed with costs.

3.                On appearance, the OP No. 3 has filed its separate contested written statement alleging therein that the OP No. 2 Panwar Maternity & Children Hospital being run by the OP No. 1 Dr. Anita Panwar was insured by Doctor’s Indemnity Policy from the answering OP.  It is further alleged that no liability attaches to the OP No. 1 in respect of personal services.  It is further alleged that under the terms & conditions of the insurance policy, the policy does not cover liability assumed by the insured by agreement and which would not have attached in the absence of such agreement.  It is further alleged that the complainant requisitioned the service of the OPs No. 1 & 2 under a contract of personal services and such services rendered under a contract of personal service is excluded from the definition of term “service” in Section 2 (1) (o) of the consumer Protection Act, 1986 and therefore the complainant is not consumer of the answering OP.  It is further alleged that the deficiency in service on the part of the doctors cannot be fixed unless any report from Medical expert on that specialty is submitted highlighting the fault on the part of the treating doctor and no such opinion of any doctor/medical expert/board has been submitted, hence, no medical negligence on the part of the OPs doctor can be attributed.  It is further alleged that the OPs No. 1 & 2 have failed to give in writing any notice to the answering OP as soon as reasonable practicable of any claims made against the answering OP company insured for specific event or circumstances that may give rise to a claim being made against the insured and which forms the subject of indemnity under the policy.  It is further alleged that the OPs No. 1 and 2 have violated the terms & conditions of the insurance policy and it is willful breach of insured, so no liability can be fastened upon the answering OP to pay any compensation to the complainant.  It is further alleged that a medical person cannot be held negligence simply because something happens wrong to the patient and he can be held guilty of negligence, when he falls short of the standard of a reasonable skillful medical person in his field and the same needs elaborate oral and documentary evidence and the same cannot be gone into through this summery procedure and Civil Court is only competent Forum to take cognizance of the matter involves in the complaint.  Thus, there is no deficiency in service on the part of answering OP and prayed for the dismissed of the complaint with compensatory costs.

5.                Ld. Counsel for the complainant has placed on record the duly sworn affidavit Ex. PW1/A and documents Annexure P1 to C52 in evidence and closed the evidence.

6.                Ld. Counsel for the OP No.1 & 2 has placed on record document as Ex. RW1 and closed the evidence.  Ld. Counsel for the OP No.3 has placed on record document as Annexure R2 and closed the evidence.

5.                We have heard both the parties at length and have gone through the case file carefully.

6.                There are some facts which are admitted by both the parties.  It is admitted fact that the wife of complainant was operated by the OP and she gave birth to a male child.  It is not disputed that complainant had cervical dystocia.  It is not disputed that baby was discharged by the OPs in a very serious condition.  The only plea taken by OP is that the after the delivery the baby was fully conscious, but having respiratory distress, so he was admitted in neonatal intensive care unit within the hospital under care of in house neonatologist.  The OPs have nowhere stated that the condition of the baby was stable.  The onus to prove that the condition of the baby was stable at any point of time after his birth, but the OPs have failed in doing so.  Mere taking plea in the written statement that the baby was conscious is not sufficient, rather this fact has to be proved by the OPs by leading some convincing and cogent documentary evidence, but the OPs have failed to produce any evidence in support of their plea.  It appears that the OPs have no documentary evidence to prove their plea.  The onus to rebut the pleading of the case of the complainant is upon the OPs, but the OPs have failed to do so and also not moved any application for sending the case to any medical Board or taken any expert opinion, otherwise it is clear cut case of negligency and mal-trade practice on the part of the OPs No. 1 & 2.  Meaning thereby that both the parties put the reliance on the Fora’s opinion and conclusion on the basis of documents placed on record and the facts & circumstances of the case.

7.                In our view, the plea taken by the OPs has no bearing on the case, because there is ample evidence to prove negligency and carelessness on the part of treating doctor, which amounts to deficiency in service.  There is no doubt that a doctor can be held guilty of negligence only when he falls short of standard of reasonable medical care and he cannot be found negligent merely because in the matter of opinion he made an error of judgment.  It is settled law that when a doctor is consulted by a patient, the doctor owes to his patient certain duties; (i) Duty of care in deciding whether to undertake the case (ii) Duty of care in deciding what treatment to give and (iii) Duty of care in the administrative or that treatment.  A breach of any of these above duties may give a cause of action for negligence and the patient may on that basis recover damages from the doctor.  In the case in hand, it is admitted fact that complainant was admitted at Panwar Maternity and Children Hospital, Bhiwani.  Therefore, OP No. 1 did not lawfully performed her duties and she did not take her task to reasonable degree skill and knowledge, which was to be exercised by her.  So, doctor did not perform her duty in view of the duties assigned to her, as mentioned above.  It is not required to have expert evidence in all cases of Medical Negligence.  It has also been observed by the Hon’ble Supreme Court of India that the direction given in case of Martin D’Souza is contrary to the principal laid down larger bench rendered in Indian Medical Association (Supra) 1995, 6 S.C.C. 651.  So general direction D’Souza case cannot be treated as binding precedent in view of the observations of the Hon’ble Supreme court in larger Bench referred above.  So, directions are contrary to the observations of the Indian Medical Association case.  The OPs have miserably failed to produce any convincing evidence to prove that they are not negligent.  So, there is deficiency, negligency and carelessness in service on the part of the OPs.  The medical profession is one of the oldest profession of the world and is humanitarian one.  There is no better service than to serve the sufferers, wounded and sick.  Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity.  Medical ethics underpins the values at the hearts of practitioner-clients relationship.  In the recent time, professionals are developing a tendency to forget that the self regulation which is at the heart of their profession is a privilege and not a right and a profession obtains this privilege in return for an implicit contract with society to provide good, competent and accountable service to the public.  It must always be kept in mind that doctor’s is a noble profession and the aim must to be serving humanity, otherwise the dignified profession will lose its true worth, if the doctor who treated the patient was negligent. 

8.                Moreover, now-a-days the private hospital and private doctors have established their profession as business and they become businessmen.  They have also got insured their hospitals with Insurance Companies, which also shows their tendency of treating their profession as business and they use to charge heavy charges from the patients and the families of the patients.  This tendency is dangerous for the whole society.  So in our view the complainant is also entitled for the compensation on account of financial losses, mental and physical harassment & punitive damages for deficiency in service & mal trade practice on the part of the OPs.  This is general tendency of the private hospitals to take advantage of the emergency circumstances of the poor patients and their attendants, to get huge commissions by hiring the other facilities from outside the hospitals such as medicines, ultrasound, Ambulance etc.  In this case also the OPs No. 1 & 2 have engage ambulance for the patient on very high rate and charged Rs.30,000/- from Bhiwani to Delhi and the receipt of the same is attached as Ex. C45.  In this way, the OPs No. 1 & 2 have crossed all the limits of the humanity.  The proper administration and proper care in the maternity hospitals are very-very important aspects, upon which the entire future depends for leading healthy life by a new born baby.   Therefore, in view of the facts & circumstances mentioned above, complaint is partly allowed and the OPs are directed as under: -

i)        The OP No. 3 to pay lump sum Rs.1,75,000/- (One lac Seventy five thousand only) being cost of treatment along with interest @ 9% p.a. from the date of filing of complaint till its final realization.

ii)       The OP No. 3 further to pay Rs.25,000/- (Twenty five thousand only) as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service & mal trade practice on the part of OPs.

iii)      The OPs No. 1 & 2 to pay Rs.1,00,000/- (One lac only) as punitive damages for mal trade practice.

iv)      The OPs No. 1 & 2 further to pay Rs.10,000/- (Ten thousand only) as counsel fee as well as the litigation charges.

          The compliance of the order shall be made within 30 days from the date of the order.  Certified copies of the order be sent to parties free of costs.  File be consigned to the record room, after due compliance.

Announced in open Forum.

Dated: - 18.06.2019.               

(Saroj Bala Bohra)                    (Parmod Kumar)        (Manjit Singh Naryal)

Member.                        Member.                         President,

                                                                      District Consumer Disputes

                                                                     Redressal Forum, Bhiwani.