Complaint filed on: 25-03-2011
Disposed on: 18-02-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.605/2011
DATED THIS THE 18th FEBRUARY 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Smt.Dhanabhagya W/o. Badan,
Aged about 60 years,
Occ. Nil, R/o. No.13,
Dhanakoti Line, KHB Quarters,
Haines Road, Bangalore
V/s
Opposite parties: -
1. Dr.B.Amanath,
Popular Nursing Home,
No.263, Jain Temple Street,
Shivajinagar, Bangalore
2. The Divisional Manager,
The New India Assurance Co. Ltd, D.O. No.2, Brigade Plaza,
No.203, North wing, 2nd Floor,
SC Road, Ananda Rao Circle,
Bangalore-09
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs under section 12 of the Consumer Protection Act’ 1986, praying to pass an order, directing the OPs to pay compensation of Rs.10,00,000=00 with interest and cost.
2. The brief facts of the complaint can be stated as under.
The 1st OP is the doctor, who is running the Nursing Home and responsible for the death of the deceased. The 2nd OP is the insurer of the 1st OP. On 24-4-2009 at about 8.00 a.m. the son of the complainant by name Shanmugam was suffering from chest pain, and immediately he was shifted to 1st OP for treatment and doctor in the Nursing Home of OP gave some tablets and injection to the deceased and advised to take rest at home, and on the same day he died while he was sleeping, and he was shifted to Popular Nursing Home and there doctor declared that he was died. The deceased was shifted to Santhosh Hospital where the doctor confirmed his death was due to the dangerous tablets and injections given by the Popular Nursing Home. Then post mortem was conducted at Bowring and Lady Curzon Hospital, Bangalore, the complainant has spent about Rs.50,000=00 towards Medical and Funeral expenses. The Bharathinagar police have registered a criminal case in crime no.93/2009 under section 304 (A) of IPC. On 24-4-2009 the deceased was aged about 23 years, he was hale and healthy and doing brick and sand business and earning Rs.10,000=00 per month, he was only the bread earning member of the family. But due to the death of the deceased, the entire family is suffering from mental agony, and the complainant lost, love and affection and lost their bread earning member, and the complainant is suffering from financial problems and great hardship. The complainant is consumer within the meaning of the Consumer as per provision of Section 12 of the Consumer Protection Act. The death of the deceased is due to carelessness and negligent Act, and dangerous tablet and injection given by the 1st OP, there is a great deficiency in tendering the service. Complainant prays to pass an order, directing the OPs to pay compensation of Rs.10,00,000=00 with interest at 12% per annum for the loss of dependency, loss of company love and affection. Hence, this complaint.
3. After service of notice, the OP no.1 and 2 have appeared through their counsel and filed version separately.
OP no.1 has stated in his version that, the complaint filed is false, frivolous and vexatious and the same has been filed with a malafide intention and it is liable to be dismissed in limine. This OP is unaware of the relationship of the complainant with the deceased. The contentions in the complaint that on 24-4-2009 at about 8.00 a.m. the son of the complainant by name Shanmugam was suffering from chest pain and he was shifted to 1st OP for treatment, the doctor of nursing home gave some tablets and injection to the deceased and advised to take bed rest at home, on the same day, he died while he was sleeping is totally false, and this OP denied other contents of the complaint. The contention of the complainant that Bharathinagar police have registered a criminal case in crime no.93/2009 section 304 (A) IPC is partly correct. Bharathinagar police having registered a criminal case have investigated the complaint in detail and referred to the Forensic Science Laboratory Bangalore to know the cause of death, and the Forensic Science Laboratory Bangalore opined that the cause of death was not due to the medication prescribed by the OP, but due to cardiac arrest and the treatment/medication by the OP earlier to the death was in no way related to the death of Shanmugam. Bharathinagar police have submitted B-report before the jurisdictional magistrate. The complainant herein being aware of the cause of death of Shanmugam with an intention to make wrongful gain by laying down a false claim against this OP and against the insurance company has filed the present complaint, which deserves to be dismissed in limine. This OP has not caused any deficiency or professional medical negligence as alleged. In fact, this OP has treated the deceased Shanmugam with more care and caution as he was a chronic alcoholic. This OP being renowned surgeon in the city having treated several lacks of patients till this day is honest and dedicated to the fullest core in his utmost noble and ethical duty to serve the patients. Hence, it is prayed to dismiss the complaint with cost.
4. OP no.2 has contended in the objection that, at the outset the complaint is not maintainable either in law or on facts. It is denied that the complainant is the mother of the deceased Shanmugam, the complainant is called to furnish their ration card, voters’ identity card etc. The complainant is put to strict proof of the same. The complainant has produced the Xerox copy of the doctor’s protection shield policy bearing no.670202/48/08 /00000083 issued in the name of Dr.B.M.Ananth, M/s. Popular Nursing Home valid for the period from 23-1-2008 to 22-11-2009 claiming the compensation for the death of the son of the complainant erroneously presuming that the said risk is covered under the scope of the policy being profession negligence. The policy does not cover professional negligence of the insured, but it covers only damage to building due to fire and burglary, on verification of the office records it discloses and admitted the issued of another policy Professional Indemnity bearing no.670202/36/08 /34/00000023 issued in the name of B.M.Ananth, M/s. Popular Nursing Home valid for the period from 00.00 hrs on 4-12-2008 to midnight of 3/12/2009. The said policy is subject to the terms and conditions as stated in the clause, the said policy is not issued in the name of the complainant and as such the complaint filed by the complainant is deserved to be dismissed. It is denied that on 24-4-2009 at 8.00 a.m. the son of the complainant was suffering from chest pain and immediately shifted to the OP no.1 for treatment, and the doctors at the said nursing home gave some tablets and injections to the deceased and advice to take rest at home, the complainant is put to strict proof of the same. It is further denied that on the same day he died while sleeping and after that he was shifted to the said popular nursing home and the doctors therein have declared that he was died. It is true that the Post mortem was conducted at Bowring and Lady Curzon Hospital Bangalore, the post mortem report was duly signed by the Asst. Professor, department of forensic medicine, Bowring and Curzon hospital, Bangalore and it does not disclose the cause of the death of the son of the complainant. It is denied that the complainant has spent Rs.50,000=00 towards medical and funeral expenses, the policy issued does not cover any such expenses. OP no.1 has not at all intimated the alleged treatment subsequent to death, filing of FIR and disposal of the said Criminal case. The complainant has not approached this forum with clean hands and filed this complaint with false, frivolous vexatious misrepresentation of facts, suppression of material facts. The criminal case in Cr.No.93/2009 under section 304 (A) IPC lodged by the Bharathinagar police was pending for final disposal as on 28-10-2010 before the jurisdictional criminal court, Bangalore, and B-report was submitted in that criminal case and doctor opined that the death was due to cardiac failure as a result of Psycardial infrantron Natural death by filing the B-report. Both the complainant and the OP no.1 were called to produce the copy of final order, the son of the complainant was died due to the Natural death i.e. wrong medical negligence. This OP has not issued any policy of insurance in the name of the complainant by virtue of the policy issued to the OP no.1, this OP is defending the case as far as cause of death. Hence, it is prayed for dismiss of the complaint of the complainant with exemplary cost.
5. On the above averment of complaint of the complainant and objections of the Ops, the following points arise for our consideration.
1. Whether the complainant proves that, the death of her son Shanmugam is due to carelessness, negligent, dangerous tablets and injections given by the OP no.1 and there is deficiency in tendering service?
2. If point no.1 is answered in favour of the complainant, what compensation the complainant is entitled to?
3. What order?
6. Our findings on the above points are;
Point no.1: In the Negative
Point no.2: In the Negative
Point no.2: For the following order
REASONS
7. Answer on the point no.1: So as to prove the case, the complainant has filed her evidence by way of affidavit and produced three copies of documents with list dated 25-3-2011 and four copies of documents with list dated 7-8-2011. On the other hand, one Dr.Ananth.B.M has filed his affidavit and produced five, three and seven copies of documents with list dated 11-5-2011, 28-6-2011 and 6-7-2010. One Ismail Khan, Deputy Manager working in the office of OP no.2 has filed his affidavit by way evidence. We have heard the arguments of both sides, and we have gone through the material evidence of both parties, scrupulously. The complainant has deposed in her evidence by way of affidavit that, on 24-4-2009 at about 8.00 a.m. her son Shanmugam was suffering from chest pain, and immediately he has taken to OP no.1 for treatment, the doctor has given some tablets and injection to the deceased and advised to take rest at home. When her son came to the house, suddenly, he started vomiting and fell unconscious and he was shifted to M/s. Popular Nursing Home where he was declared as dead, and the deceased was shifted to Santhosh Hospital where the doctor has confirmed his death, it was due to the dangerous tablets and injections given by M/s. Popular Nursing Home doctor. The post mortem was conducted and she has spent about Rs.50,000=00 towards medical and funeral expenses. The Bharathinagar police have registered a criminal case in crime no.93/2009 u/s 304 (A) of IPC. Prior to the incident her son was aged about 23 years and he was hale and healthy, and doing brick and sand business and earning Rs.10,000=00 per month, he was the only bread earning member of the family and due to the death of her son, the entire family is suffering from mental agony, lost love and affection, and lost our bread earning member. They are suffering from financial problems and great hardship. The death was due to negligence of OP no.1 in treating the deceased Shanmugam, and they are the consumer under the provisions of the CP Act. The death of the deceased is due to carelessness and negligent act of OP no.1 and dangerous tablet and injections were given by OP no.1. There is great deficiency in tendering the service. Hence the complaint.
8. It is no doubt true that, the complainant has given evidence in accordance with the averments of the complaint. Let us have a look at the documents of the complainant. The document no.1 of the complainant list dated 7-8-2011 is copy of FIR and complaint. The complaint was given by one B.Babu who was elder brother of the deceased and he stated in the complaint that he is having suspicion that his elder brother died on account of dangerous tablets and injection given by the doctor working in the Popular Nursing Home, and accordingly on the complaint of the complainant a criminal case was registered u/s 304 (A) of IPC. The 2nd document is copy of post mortem report of the deceased wherein the opinion of the doctor was reserved pending FSL report. The documents no.3 and 4 are the copies of Election identity card and ration card of the complainant. The document no.1 of complainant list dated 25-3-2011 is copy of FIR registering the criminal case against the M/s. Popular Nursing Home doctor on the complaint of one B.Babu on suspicion under section 304 (A) of IPC, and the said FIR was enclosed with copy of complaint of the complainant. The document no.2 is the copy of Post mortem report of the deceased and in that post mortem, the opinion was reserved pending FSL and histopathological examination reports. The document no.3 is the copy of policy made by Dr.B.M.Ananth in respect of his hospital with the New India Assurance Company Limited for a period from 23-11-2008 t0 22-11-2009. The said documents of the complainant do not disclose clearly to know whether the deceased died on account of carelessness and negligent act of the doctor working in M/s. Popular Nursing Home. Moreover, the complainant has not taken pain to appoint the medical expert to know the cause of death of the deceased. If the complainant had produced the report of the expert doctor to unearth the cause of death of the deceased, this forum could have extended helping hands to the complainant in awarding compensation. No such sincere effort is made by the complainant to get the report of medical expert. The oral evidence of the complainant that the deceased died due to negligent act of the doctor of OP no.1 is not corroborated by clear cogent and consistent documentary evidence. OPs have stated in their evidence specifically that there was no negligence on the part of the doctor working in the hospital of the OP no.1 while treating the son of the complainant, and they have taken maximum care and pre-caution in saving life of the deceased. In order to harassment them, the present complaint is filed and the criminal case against the OP no.1 was disposed of by accepting B-report and they have not committed any offence, so the complaint be dismissed.
9. At this stage, it is relevant to have a cursory glance at the important documents of the OPs. The OP no.1 has produced copy of the order sheet in criminal case no.93/2009 and that order sheet shows that, OP no.1 and 2 were produced before the Magistrate court and released on personal bond, and the next document of the OP no.1 is the copy of B-report filed by the policy in criminal case in the list dated 28-6-2011 of OP no.1. The entire certified copy of the order sheet of Criminal case no.93/2009 is produced and that order sheet revealed that on 16-3-2011 the complainant of that criminal case was very much present before the court and he has no objection to accept B-report, and accordingly B-report was accepted by court and that Criminal case came to be closed. In view of closure of the criminal case filed, the accused of that case were acquitted as B-report filed by the police was accepted by jurisdictional magistrate. The testimonies of OP no.1 and 2 that the criminal case filed against the OP no.1 was disposed of by accepting B-report stands corroborated by copies of order sheet of the criminal case. So taking into consideration, material evidence of both parties, it is vivid and clear that the complainant who knocks the door of the forum seeking compensation on the ground of medical negligence, the complainant has miserably failed to prove with the documentary evidence that her son died due to carelessness and negligent act and administering the tablets and injection to deceased by doctor of OP no.1. In view of paucity of material evidence, oral testimony of the complainant crumbles to the ground automatically and accordingly, we answer this point in a negative. In view of negative finding of point no.1, the complainant is disentitled to claim any compensation, and accordingly, we answer these points in a negative. In the result, for the forgoing reasons, we proceed to pass the following;
ORDER
The complaint of the complainant is dismissed. Under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 18th day of February 2012.
MEMBER MEMBER PRESIDENT
