Mrs. Palvi 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.20,00,000/- as compensation to her on account of loss of death of her first baby boy due to utter negligence of the opposite parties, in the interest of justice.
2. The case of the complainant in brief is that she was pregnant and getting her general check up from the Medical Officer posted at Dispensary Awankha and also from Primary Health Centre, Singhowal, Tehsil and District Gurdaspur from 23.9.2013 and Card was issued by the Medical Officer, Awankha for her checkup and vaccination of the pregnant women. She has further pleaded that on 29.6.2014 at 9.A.M. she got admitted at CHC Singhowal, P.S.Dinanager, Tehsil and District Gurdaspur due to labour pains and paid the admission and hospital charges to the opposite parties as per Govt. rules as her pregnancy was due. The opposite parties no.1 to 6 was posted at CHC Singhowal as Medical Officer and Staff Nurses and as per the Govt. Timings, they were supposed to be in the Hospital during their duty hours. The opposite parties no.1 and 2 remained absent and did not attend the Hospital on that day upto 6 P.M. She remained in severe labour pains and there was nobody to look after her. Her condition deteriorated and she was shirking with labour pains. The opposite parties no.3 and 4 were on morning duty and they informed the opposite parties no.1 and 2 on telephone to come immediately to the hospital as the patient was shirking with pain and the delivery was due, but the opposite parties no.1 and 2 turned deaf ears and they did not attend the Hospital upto 6 P.M. After 2 P.M. the duty roaster changed and the opposite party no.5 and 6 joined the duty in place of opposite party no.3 and 4. She was shirking with severe pains while delivering the child, but the opposite parties no.3 to 6 did not bother to attend her and left her in the lurch. They were giving false assurances to her that the doctors were on their way to hospital but all was in the air. She has further pleaded that during the duty hours of opposite party no.5 and 6 at around 2.32 PM she gave birth to a son, they instead of handling the delivery case with circumspect showed utter negligence and pulled the baby out of Umbilical code and Umbilical code (Naval Sting) broke down and the condition of the baby boy became deteriorated. The opposite party no.5 and 6 told her and her relatives to take the baby boy immediately to Kalsi Hospital, Gurdaspur as the condition was serious. They did not take utmost care and also refused to give Ambulance 108 on the pretext that the staff was on the strike and compelled her and her son to take new born baby on Motor Cycle. After reaching Kalsi Hospital, Gurdaspur, Dr.Gurkhel Kalsi declared the new born baby dead and told her that the death took place due to the utter negligence of the opposite parties and wrong delivery of the Health Staff who had forcibly pulled him out during delivery from his Head without cutting Umbilical code. She brought the dead baby back to Primary Health Centre, Singhowal and requested to take her care but the opposite parties no.1 and 2 did not attend the Hospital despite of the false assurance by the opposite parties no.3 to 6 to her. She has next pleaded that she and all the relatives gathered at hospital and staged a Dharna and raised slogans against the opposite parties no.1 to 6 for their utter negligence in handling her delivery case and informed the S.M.O. CHC Singhowal Dr.Iqbal Singh Multani regarding the utter negligence of the opposite parties due to which death of new born baby took place. The matter was immediately informed to the Police of P.S.Dinangar, where the complaint was registered at Unique ID No.535544 dated 30.6.2014 at Saanjh Kender, Police Station, Dinanagar regarding the death of new born baby child. The S.M.O. Singhowal assured her that the action would be taken against the erring/guilty Medical Officers responsible for the utter negligence and not attending the Hospital during duty hours. On the assurance of the S.M.O. Singhowal, the Dharna was called off by her and enquiry was marked to District Health Officer, Dr.B.S.Bajwa wherein her statement was recorded, but till date no action has been taken against the opposite parties no.1 to 6 for their utter negligence shown during her delivery by them. She has also moved an application to the S.S.P. Gurdaspur for registration of criminal action against the opposite parties No.1 to 6. The death of her son took place due to the utter and sheer negligence of the opposite parties no.1 to 6 due to which she has suffered irreparable loss and also suffered mental and physical agony at the hands of the opposite parties. Hence this complaint.
3. Notice issued to the opposite party no.1 has not received back served/un-served. Consequently, it was proceeded against exparte vide order dated 7.11.2014. On 3.3.2015 Sh.Rajiv Bhatia, Adv. appeared on behalf of opposite party no.1 and moved an application for joining the proceedings and it was allowed in the interest of justice.
4. Notice of the complaint was issued to opposite parties. Opposite party no.2 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable; the complaint is liable to be dismissed as the complainant is not the consumer of the opposite party no.2 and the complaint is liable to be dismissed as there is no privity of contract between the complainant and the opposite party no.2 even otherwise the opposite party no.2 is a surgeon and not a Gynecologist. The present complaint pertains to Gynecology department where opposite party no.1 is 24 hours duty. She is not assigned any other regular duty except the Gyne and delivery cases. On merits, it was submitted that the complainant has paid nothing on account of admission and hospital charges to the opposite parties. For the delivery cases opposite party no.1 who was Gynecologist and was on 24 hours duty for the purpose of delivery and opposite party no.2 was on emergency medical duty (on call) on 29.6.2014 for surgical purpose. Since the present complaint pertains to Gynecology department, so the opposite party no.2 has nothing to do with this case and it was the primary duty of opposite party no.1 to handle this delivery case. She was specifically posted at CHC Singhowal for delivery and Gyne cases. That is why she was not assigned the other general duties or emergency duties. The opposite party no.2 was not called by the duty staff at any point of time. This can be verified from the official record. Moreover as per the official record the delivery of a male child was normal and the child was born alive. The complainant even received an amount of Rs.1000/- from the hospital as Govt. incentive for a live delivery cases in Civil Hospitals. The staff nurses who handled this delivery procedure made delivery note on 29.6.2014 on the back of the OPD slip. As per the note a live male baby was delivered. As the baby boy was not properly crying, as should normally be, so he was referred to Civil Hospital Gurdaspur for further management. As per the note the opposite party no.1 was informed at 2.30 PM but the phone was disconnected. After that the concerned staff nurse informed the SMO at 2.35 PM. It was denied that opposite party no.2 did not attend the hospital upto 6 PM. It was next submitted that as submitted above, the case pertains to Gynecology department and the opposite party no.2 being the surgeon has nothing to do with the Gynecology department or the normal delivery cases. Moreover the dead body was not subjected to postmortem examination, so as to find the actual cause of death. It was a common sense view also that first the baby was to born and thereafter the Umbilical code was to be cut. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
5. Opposite party 3 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable in this Forum and the complainant has not paid any fee for the services obtained from this institution. Hence complainant is not consumer under the Consumer Protection Act. On merits, it was submitted that opposite parties no.3 and 4 were on morning duty in the P.H.C. Singhowal and they got the complainant admitted in P.H.C. and checked up in the labour room. At that time her FHR was 142/PM and BP was 110/80 mmgh. All the reports of the complainant were checked up and enquired other things from the complainant. After P/V examination of the complainant her o/s was two fingers tight and thin cervix. After checking of the complainant enema was given to her and told her that after latrine she would be check up. Thereafter the complainant was checked up after every half an hour and she was all right. After two hours p/v examination of the complainant, she was progressing proper labour pain. At about 1.45 PM the FHS and B/P of the complainant were normal. On P/V examination she had o/s three fingers loose. After every half an hour after the admission of the patient the opposite party informed the Doctor i.e. opposite party no.1 on phone that on 29.6.2014 at 2 PM. When the duty of the opposite party was shifted, she handed over the patient/complainant to next coming staff and came out of the labour room after telling them progress of labour pain and P/V examination. The opposite parties look after the patient carefully alongwith other staff members sincerely to the best of her efforts. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
6. Opposite party 4 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable in this Forum and the complainant has not paid any fee for the services obtained from this institution. Hence complainant is not consumer under the Consumer Protection Act. On merits, it was submitted that opposite parties no.3 and 4 were on the morning duty in the said P.H.C. Singhowal and they got the complainant admitted in P.H.C. and was checked up in the labour room . At that time her FHR was 142/PM and BP was 110/80 mmgh. All the reports of the complainant were checked up and enquired other things from the complainant. After P/V examination of the complainant her o/s was two fingers tight and thin cervix. After checking of the complainant enema was given to her and told her that after latrine she would be checked up. Thereafter the complainant was checked up after every half an hour and she was all right. After two hours p/v examination of the complainant, she was progressing proper labour pain. At about 1.45 PM the FHS and B/P of the complainant was normal. On P/V examination she had o/s three fingers loose. After every half an hour after the admission of the patient the opposite party informed the Doctor i.e. opposite party no.1 on phone that on 29.6.2014 at 2 PM. When the duty of the opposite party was shifted, she handed over the patient/complainant to next coming staff and came out of the labour room after telling them progress of labour pain and P/V examination. The opposite parties look after the patient carefully alongwith other staff members sincerely to the best of her efforts. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
7. Opposite party 5 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable in this Forum as Primary Health Centre, Singhowal run by Govt. Institution free of costs and the complainant has not paid any fee for the services obtained from this institution. Hence complainant is not consumer under the Consumer Protection Act. On merits, it was submitted that opposite party no.5 joined on evening duty at 2 PM in the P.H.C. Singhowal and checked up the complainant in the labour room. At that time dextrose 5% plane was going on to the complainant and opposite party no.5 put in injection oxitocine one unit in that drip. At that time cervix fully dilated. At 2.10 P.M. membrane of the complainant were ruptured. Clear straw color fluid came out of uterus. At 2.15 PM episiotomy was given to the complainant. The complainant delivered the child by normal delivery. At that time the child poorly cried. The nose and mouth of the child were cleaned and suction done and oxygen was given to the child. But the condition did not improve. Several times were informed the opposite party no.1 telephonically about the condition of the child but the opposite party no.1 did not come to the CHC Singhowal, so we referred the child to Civil Hospital, Gurdaspur. Opposite party no.5 looked after the child sincerely and made the efforts best of her duties and there was no fault on the part of the opposite party no.5. Thus, there is no deficiency in service on the part of the opposite party no.5. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs
8. Opposite party 6 has appeared and filed its written reply by taking the preliminary objections that the complaint is not maintainable as neither any charges were paid to the opposite parties i.e. in the Civil Hospital, nor any promise to pay as the said opposite party was serving in CHC Singowal Dinanager and the service and treatment to very one in the Hospital was free of cost and no charges of any kind were taken from complainant was free of cost and no charges of any kind were taken from complainant side, as such there were no relations of consumer between complainant and the opposite party; there is no expert opinion in this case and in absence of expert opinion, the liability in alleged medical negligence was can not be fastened and the complaint was bad for misjoinder and non joinder of the necessary parties, as in this case, neither the Punjab State, nor Health Corporation was made party. On merits, it was admitted that opposite party no.1 to 6 were posted at CHC Singhowal as Medical Officer and Staff Nurses. Several times opposite party tried to inform the opposite party no.1 telephonically but on account of net work problem the phone was disconnected. However, it was submitted that the opposite party was a qualified and trained staff nurse and having diploma of General Nursing and Midwifery and she was competent to handle such type of cases. Then the opposite party tried to contact the opposite party no.1 through Landline phone but on account of non availability of dilated tune the opposite party no.1 could not be contacted. As the condition of the baby was deteriorating gradually inspite of rendering best medical care and since there was no advanced neonatal care unit in the Hospital, hence the baby was referred to Gurdaspur for better man management, but complainant party himself admitted the child somewhere else at their own. The opposite party discharged her duty diligently and efficiently and looked after the child sincerely and made the efforts best of her duty and there was no fault on the part of the opposite party. It was further submitted that a thorough inquiry into the matter had been conducted by S.M.O. Singhowal and during the inquiry it was found that there was no fault on the part of the opposite party. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs
9. Opposite party no.7 and 8 have appeared and filed their joint written reply by taking the preliminary objections that the complaint is not maintainable; no cause of action has accrued to file the present complaint against the opposite parties; no notice u/s 80 C.P.C. service upon the opposite parties before filing the present complaint against the opposite parties and the complaint is liable to be dismissed as the complainant is not consumer of the opposite parties no.7 and 8. On merits, it was admitted that opposite parties no.1 to 6 were posted at C.H.C. Singhowal as Medical Officer and Staff Nurses and as per Govt. Instructions they were doing the work in the hospital under the roster. It was denied that any negligence on the part of the opposite parties no.1 to 6 and it was also denied, the opposite party no.7 and 8 was also responsible as per rule. Actually, the opposite party was controlling authority of the opposite parties 1 to 6 and the S.M.O. was the Incharge of C.H.C.Singhowal. It was submitted that the complainant has filed the complaint against the opposite parties no.1 to 6 to the Ld.Deputy Commissioner Gurdaspur and the Deputy Commissioner Gurdaspur has sent the complaint to the opposite party no.7 for enquiry. In this regard, the opposite party no.7 i.e. Civil Surgeon Gurdaspur marked the enquiry the matter and report. The enquiry Officer has conducted the enquiry and submitted his report to the Civil Surgeon, Gurdaspur vide report no.Gsp/NHM/CHG/14/1797 dated 28.7.2014. It was next submitted that after the delivery of child, amount of Rs.1000/- was paid to the patient under rule as honorarium. So, the complainant was not entitled for any amount of compensation as per rule. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs
10. Complainant tendered into evidence her own affidavit Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C12 and closed the evidence.
11. Dr. Attinder Kaur Dhillon, Retired Medical Officer opposite party no.1 appeared and tendered into evidence her own affidavit Ex.OP1/1 alongwith other documents Ex.OP-1/2 to Ex.OP-1/8 and closed the evidence.
12. Dr.Manjit Singh Babbar Medical Surgeon CHC Singhowal has tendered into evidence his own affidavit Ex.OP2/A alongwith other documents Ex.OP-2/1 to Ex.OP-2/7 and closed the evidence.
13. Counsel for the opposite party no.3 has tendered into evidence affidavit of Ms.Kamaljit Kaur Ex.OP-3/A alongwith other documents Ex.OP-3/1 to Ex.OP-3/4 and closed the evidence.
14. Ms.Shimla Devi Staff Nurse has tendered into evidence her own affidavit Ex.OP-4/1, alongwith other documents Ex.OP-4/2 to Ex.OP-4/6 and closed the evidence.
15. Ms.Harjit Kaur Staff Nurse has tendered into evidence her own affidavit Ex.OP-5/1, alongwith other documents Ex.OP-5/2 to Ex.OP-5/4 and closed the evidence.
16. Smt.Gurmeet Kaur Staff Nurse has tendered into evidence her own affidavit Ex.OP-6/1, alongwith other documents Ex.OP-6/2 and Ex.OP-6/3 and closed the evidednce.
17. Dr.Iqbal Singh Multani, CHC Singhowal Hospital has tendered into evidence his own affidavit Ex.OP-7,8/1 alongwith other document Ex.OP-7,8/2 and closed the evidence.
18. 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’). We are of the considered opinion that the complainant shall deem to be ‘consumer’ of the opposite parties as having availed of the medical treatment services at their hands even at the face of non-production of any ‘money-fee’ receipt on the records of the present proceedings. Besides the health services being the duty function of the welfare-state to provide medical treatment (including the fee-charged, the fee-free & the concessional fee ones) to the members of the General Public, it is understood that a nominal token-fee is collected from the prospective patients as ‘registration charges’ at the issuance of the prescription slip/ treatment card etc at the behest of the Punjab Health Systems Corporation, Chandigarh. By the time, the fore-told proposition finds ample legal support by virtue of a plethora of ‘superior’ court judgments; and thus the present complainant falls within the statutory definition of ‘consumer’ as envisaged under the Act and thus we hold it eligible/ admissible for trial/ adjudication under the Act.
19. 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 for the OP2 doctor (on the very date fixed for pronouncement of orders) filed an application seeking adjournment in order to address some additional but vital law/ argument and that was allowed in the interest of justice. 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.’’
20. 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.
21. 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)
February 05,2016. Member
*MK*
