Karnataka

Kolar

CC/5/2015

G.Krishnamurthy - Complainant(s)

Versus

Dr. Beeregowda - Opp.Party(s)

K.Narendra Babu

27 Jul 2016

ORDER

Date of Filing: 30/01/2015

Date of Order: 27/07/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 27^th DAY OF JULY 2016

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 05 OF 2015

Sri. G. Krishnamurthy,

S/o. late Gangaramaiah,

Aged About 30 Years,

R/at: Vemgal-Narasapura Road,

Vemgal Village, A-Block,

Kolar Taluk.

(Rep. by Sriyuth. K.Narendrababu, Advocate)          ….  Complainant.

 

- V/s -

(1) Dr. Beeregowda,

Pediatrician, Proprietor of

Sri Chowdeshwari Multi Specialty

Hospital, 3^rd Cross, Kuvempu Nagara,

Kolar-563 101.

 

(2) Dr. Umadevi, Doctor,

Sri Chowdeshwari Multi Specialty

Hospital, 3^rd Cross, Kuvempu Nagara,

Kolar-563 101.

 

(3) Dr. Manjunath, Doctor,

Sri Chowdeshwari Multi Specialty

Hospital, 3^rd Cross, Kuvempu Nagara,

Kolar-563 101.

(OP Nos.1 & 2 are rep. by Sriyuths. K.R.Srinivasaiah

& K.S.Saikumar, advocates)                                  …. Opposite Parties.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant having preferred this complaint (taken read as the one Under Section 12 of the Consumer Protection Act, 1986) has sought relief of Rs.20,00,000/- by way of compensation alleging medical negligence against these OP Nos.1 to 3.

02.    The facts in brief:-

(a)    It is contention of the complainant that, on 11.11.2014 because of intermittent fever suffered by his male child aged about 06 months, he got the said child admitted in Sri Chowdeshwari Multi Specialty Hospital, Kolar, which was/is run by these OP Nos.1 to 3.  At this juncture it is worth to note that OP-1 is the husband of the OP-2 and OP-3 is younger brother of the OP-1.

 

(b)    It is also contended that, the OP-1 on admission of the said child after medical check-up told that, the said child was suffering from dengue fever.  And that the said child which was admitted on the said day was under treatment with these Ops till 15.11.2014; during which time it was given treatment.  And that on 15.11.2014 condition of the said child became critical and had stopped taking breast milk, lever was enlarged, there was thickening of the wall of gall bladder and there was a respiratory problem and the BP was not to be under control.  And it is also contended that, because of its condition the OP-1 told him to take the child for emergency treatment elsewhere and thus refused to continue the medical treatment.  And that thus forcibly the discharge came to be made.  And that the said child was taken to Manipal Hospital in Bangalore and as the health condition was beyond control the said child died on 20.11.2014. 

 

(c)    It is also contended that the Ops got the said child admitted in the said hospital even when there were no well equipped instruments, machineries and expertise to give treatment for dengue fever.  And that even when in the in-patient record it was mentioned that, the said child was suffering from dengue fever, the platelets counts were not resorted to everyday from time to time.  And that though there was a knowledge that decrease in the platelets would result in dengue fever, though the said child was since 4 days in the said hospital not even once platelet transfusion was made and no platelet counts were taken for every 06 hours.

 

(d)    It is also contended that, the said child was admitted without provisions for PICU or NICU as said provisions were the requirement to keep the child for treatment.

 

(e)    Further it is contended that, in this Sri Chowdeshwari Multi Specialty Hospital there were no equipments meant for ICU, cardiac monitor and ventilator.  And that in-spite of this the said child was admitted.

 

(f)     Further it is contended that, without there being any facilities and availability of experts on the subject and provision for treatment public were attracted and deceived in this hospital styled as “Sri Chowdeshwari Multi Specialty Hospital”.

 

(g)    Further it is contended that, when there was fall in BP, enlargement of lever, thickening of wall of the gall bladder, respiratory problem and stopping of taking breast milk, no relief giving treatment was given to the said child in the said hospital.

 

(h)    Further it is contended that, services of nurses who were under training came to be utilized and thus the management of the said hospital permitted such nursing staff to give treatment to the said child.  And that in spite of this fee came to be charged based on service provided by experienced nurse staff.  And that even the said nurse-staff under the training behaved as if they possessed required qualification and thus under deception the treatment came to be provided to the said child.

 

(i)     It is also contended that, there was/is unauthorized stall for selling medicines and such medicines were used to treat the said child.  And that as the said medicines were inferior in quality there was a complaint even against such companies supplying the medicines.

 

(j)     It is also contended that in the said hospital glucose, a type of antibiotic and paracetamol syrup only came to be given.  And that from such treatment blood pressure and fever though could be prevented the same could never to relieve dengue fever.  And that in spite of awareness of this, the Ops since negligent in giving treatment became the cause for death of the said child.

 

(k)    Further it is contended that instead of keeping the said child in PICU or NICU and instead of giving necessary medical treatment when the health condition of the said child became critical, the Ops became negligent in spite of the awareness that the said child was entering critical phase.  And that the Ops were guilty of not keeping themselves with necessary readiness and thus negligently they forced discharge of the said ailing child from the hospital.

 

(l)     It is contended that complete blood count, chest x-ray serum Electrolytes (sodium-potassium), Urine Routine, Central Nerve System, Abdominal, Gall bladder, Lever Tests were not conducted.  And that even when health condition of the said child became very serious the management of the said hospital did not make consultation with experts and likewise even the staff also did not do the same. 

 

(m)   It is contended that there was/is no display of fees to be charged on different heads nor particulars of the staff. 

 

(n)    Further it is contended that even when there could be no expert staff, specialists and equipments the blood test came to be resorted to.  And that under the circumstances there was a complaint with regard to result of the laboratory test.

 

(o)    Further it is contended that, though the Ops were aware that there could be no relief during the treatment given, they proceeded ahead to give treatment contending that they would cure the dengue fever.  And that because of the greed for money the doctors and the nurse staff attached to the said hospital through negligence and deception gave the treatment.

 

(p)    Further it is specifically contended that these OP Nos.1 to 3 were guilty of commission of offences made punishable Under Sections 269, 284, 287, 320, 322, 324, 338, 491, 24, 25, 107 of IPC and other provisions applicable to the case on hand.

 

(q)    It is also contended that, he was deceived by the Ops and these Ops were/are the main cause for the death of the said child.  And that he spent nearly Rs.10,000/- in the said hospital for providing medical treatment to his said child.  Further it is contended that, the Ops were guilty of forcing the discharge when health condition of the said child became very critical.  And that on account of such discharge he was constrained to take the said child to Manipal Hospital in Bangalore.  And that to save the said child he spent nearly Rs.15,00,000/- in the said Manipal Hospital.

 

(r)     It is also contended that, he got issued legal notice to the Ops to comply within 15 days to pay total medical expenses of Rs.15,10,000/- and compensation of Rs.25,00,000/- as they were the cause for death of the said child, and that failure of compliance would result in taking legal action.  And that such a notice came to be issued to the Ops on 12.12.2014 through his advocate.  Further it is contended that complaint came to be lodged on 21.11.2014 with PSI of Kolar PS and on 12.12.2014 with Superintendent of Police of the Kolar District.

 

(s)    So contending the complainant has come up with this complaint on hand to seek the above set out reliefs.

 

02.   At this juncture it is worth to note that, the original complaint submitted before this Forum on 30.01.2015 is defective in the sense, instead of continuity of paragraph Nos. 8 to 15 there is a repetition of paragraph Nos.2 to 7 likewise instead of continuity of paragraph Nos. 24 to 28 there is repetition of paragraph Nos. 16 to 23.  It must be on account of mistake committed while giving command to take print-out.

 

03.   However we have overcome the said disadvantage of reference to Paras 8 to 15 and 24 to 28 in as much as examination in chief submitted by way of affidavit is nothing but reprint of the said complaint and in this reprint the said paragraph Nos. 8 to 15 and 24 to 28 do appear and hence repetition of paragraph Nos. 2 to 7 and 16 t 23 came to be overcome by us while noting the facts for this case.  We have come to the conclusion of such mistake committed in taking the print-out for the said complaint, because paragraphs 1 to 7 and paragraphs 16 to 23 are literally similar of this affidavit evidence.  Moreover reference made by the Ops in their written version specifically refers to paragraphs-8 to 15 and to 21 to 28 besides other paragraphs and we have made reference in this context only for the purpose of clarity to bear in mind.

 

04.   The Ops have resisted the claim of the complainant in toto by refuting allegations made in the complaint by para-wise.  Further contending that no lapses took place at the time of treating of the said child and on 15.11.2014 the very complainant took the said child for Manipal Hospital for higher treatment.  And that they were not to have any knowledge about the line of treatment and cause for death as incident of the death took place in the said hospital on 20.11.2014 and they were not attached to the said Manipal Hospital in Bangalore.

 

(a)    Further it is specifically contended as long as the said child was in their hospital at no time the platelets counts came to below 20,000 and hence there was no need of transfusion of the platelets.  It is also contended that in their hospital there were/are necessary equipments and experienced staff and there were/are PICU and NICU units.  There is a specific denial that, they availed services of inexperienced nurses who were under training and charged as if services of experienced nurses came to provided as contended by the complainant.  And even with regard to the medical shop within premises of the said hospital it is contended that it was/is authorized one.  Further it is contended that only to bring down fame of their hospital the present complaint has been submitted with ulterior purpose of character assassination.  And that this complaint is with ulterior purpose of making illegal gain.  It is also contended that unless and until Manipal Hospital is made as a party to the present proceedings being a necessary party the complaint is untenable.  It is also contended that they were never guilty of contended offences made punishable in IPC and other applicable penal provisions as contended by the complainant.

 

(b)    So contending dismissal of the complaint with costs has been sought.

 

05.   The complainant and the OP-1 have submitted their affidavit evidence by way of examination-in-chief.

 

06.   The very complainant also got himself examined as PW-1 and Exhibits-P.1 to P.14 came to be marked and received in evidence.

 

07.   The OP-1 came to be examined as DW-1 and Exhibits-D.1 to D.22 came to be marked and received in the evidence.

 

08.   On behalf of the complainant his learned counsel has submitted written arguments and following 09 citations with Memo dated: 27.02.2016:-

 

(i)     AIR 1996 SC 2111:-

        The principles enunciated in this citation are that, a person qualified in Homeopathy by giving allopathic medicines he being a quack is guilty of gross medical negligence (Para-41).

        Besides as per principles enunciated in this case negligence with regard to tort would amounts to when following ingredients are constituted:-

1. A legal duty to exercise due care;
2. Breach of the duty; and
3. Consequently damages.

        Further in this case principle enunciated in AIR 1969 SC 128 in Dr. Laxman Balakrishna Joshi V/s. Dr. Trimbak Bapu Godbole is taken in to consideration and this referred citation the Doctor has three folded duties namely:- (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment.  And breach of any of these duties gives a cause of action for negligence to the patient. (relied on paragraphs 14 and 19).

 

(ii)    AIR 2004 SC 5088:-

        The principle enunciated in this citation is to the effect that burden cannot be placed on a patient to implead all those treating doctors who are attending staff as parties.

 

(iii)   AIR 1974 SC 890:-

        The principle enunciated in this citation is to the effect that if the truck caught fire while running evidence to indicate that engine was defective.  And when no evidence was given as to how the vehicle got fire Maxim Res Ipsa Loquitur applies and negligence of driver proved.

 

(iv)   AIR 2005 SC 3180:-

        The principles enunciated in this citation are that liability under civil and criminal law are different and generally speaking it is the amount of damages incurred which is determinative of the extent of liability in tort – whereas, in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of the liability.  Further it is held that, a doctor may not be arrested in a routine manner.  And also it deals with care and action to be entertained while dealing with complaint against the doctor alleging rashness of negligence. 

 

(v)    AIR 2004 SC 5088:-

        This citation is repetition of citation noted at serial No.2.

 

(vi)   AIR 2001 SC 3914:-

        As per the principles enunciated in this citation it has to be demonstrated that, a doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the Court’s satisfaction that such opinion relied on is reasonable or responsible.  And also that if it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible.  And in the said case it was held that, the Dr. Santha Warriar was responsible. 

 

(vii)  AIR 1996 SC 550:-

        As per the principles enunciated in this citation medical service against consideration is held as service for the purpose of Section 2(1)(o) of the Consumer Protection Act, 1986 and persons availing such “service” are consumers within the meaning of Section 2(1)(d) of the Act.

 

(viii) AIR 1998 SC 1801:-

        As per the principle enunciated in this citation when an young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of Consumer.

 

(ix)   AIR 1969 SC 128 – Dr. Laxman Balkrishna Joshi V/s. Dr. Trimbak Bapu Godbole & Another:-

        This citation is referred as a referred citation in AIR 1996 SC 211 as noted above.

 

09.   Further on 23.03.2016 with Memo the Learned counsel appearing for the complainant has submitted Xerox copies of the Medical Literature.

 

10.   Further the learned counsel appearing for the complainant has submitted additional written arguments and with Memo dated: 27.06.2016 he has submitted following 11 medical commentaries pertaining to dengue fever and connected matters:-

(i)      Study questions pertaining to variations in Hemoglobin

(ii)    Journal of Emergencies pertaining to Dengue shock

(iii)   Factor VII – Wikipedia, the free encyclopedia

(iv)    Necrosis MedlinePlus trusted health information

(v)     Information pertains to Dopamine Injection uses and its dosage.

(vi)    Information pertains to understanding the complete blood count (CBC).

(vii)   Information with regard to Heamoglobin Test

(viii) Information regarding Hepatomegaly by MedlinePlus

(ix)    Information pertaining to Pleural Effusion.

(x)     Information regarding Blood Transfusion : clotting factor.

(xi)    Information pertains to what is the daily fluctuation of hemoglobin levels in the human body.

 

11.   The learned counsel appearing for the Ops has submitted written arguments and also additional written arguments with Xerox copies of following case law:-

 

(i)     III (2004) CPJ 20 NC:-

        It is a case of medical negligence with regard to left eye based on the print of image of the scan and it was held that, there was no negligence while implanting lens of the eyes of the complainant therein.

 

(ii)    Judgment dated: 20.11.2002 of the Hon’ble NCDRC in Dr. Harkanwaljit Singh Saini V/s. Gurbax Singh & Others – In this case it is held that, as it was not a case of applicability of principles of res ipsa loquitur, in the absence of any expert evidence the doctor therein was not to be held guilty of negligence.

 

(iii)   I (2004) CPJ 79 (NC):-

        The principles enunciated in this citation is with regard to non-insertion of drainage tube for the victim therein who had suffered leg injury that resulted in amputation, was not to be medical negligence.

 

(iv)   Judgment dated: 11.05.2011 of the Hon’ble Supreme Court in Amar Singh V/s Union Of India & Others – it is a case with regard to intercepting petitioner’s conversation on phone, monitoring them and recording them and for eventual consequences. 

 

(v)    Judgment dated: 02.05.1968 by the Hon’ble Supreme Court of India in Laxman Balkrishna Joshi V/s Trimbak Bapu Godbole & Another – which is equivalent to 1969 AIR 128 (this decision is also relied by the Learned counsel appearing for the complainant as noted above).

 

(vi)   Judgment dated: 23.12.2002 by the Hon’ble NCDRC in Jai Prakash Saini V/s. Director Rajiv Gandhi Cancer Institute & Research.  As per the principles enunciated in the said citation it was held that, there was negligence/carelessness on the part of the concerned functionaries of RGCIRC (OP-1) had correctly diagnosed ailment of the complainant therein as a cancer in their report dated: 05.09.1997, because of delay in the communication by the said functionaries the treatment for cancer commenced after loss of at least one month of time.

 

(vii)  III (2004) CPJ 20 NC:-

        This is a repetition of citation referred to at serial No.1 as noted above.

 

(viii) 1969 AIR 128:-

        Repetition of citation at serial No.5 as noted above.

 

(ix)   III (2006) CPJ 142 NC – Dr. Kunal Saha V/s. Dr. Sukumar Mukherjee & Others:-

        In this case concept of civil negligence and concept of criminal negligence have been considered besides methods to assess compensation have illustrated with a direction to fallow the method in assessing compensation as per the relevant provisions of Motors Vehicles Act, 1988.

 

12.   The citations with principles submitted by the learned counsel appearing for the Ops with Memo dated: 22.07.2016 are:-

 

(i)     Judgment of the Hon’ble NCDRC in Consumer Case No.22 of 2010 – Dr. Deepak Kumar Satsangi & Another V/s Sanjeevan Medical Research Centre (P) Ltd. & Others – As per the principles enunciated in Para-34 of the judgment, it is held that, a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.  And it is also held that, the Doctor would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

 

(ii)    Judgment dated: 08.05.2014 passed by the Hon’ble State Consumer Disputes Redressal Commission in Dr. Kapil Dev Sharma V/s. Smt. Saroj Bala.  In this case it is held that, in case of severe bleeding give fresh blood transfusion about 20 ml/kg for two hours is indicated and also then to give crystalloid at 10 ml/kg/hr for short time (20-60 minutes) and later reduce the speed.  In case of dengue fever / dengue hemorrhagic fever cases. 

 

        Further it is held that res Ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence.  Further it is held that, it cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law.  Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.  

 

        Further it is held that, the law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.

                                                        (Emphasis Supplied)

(iii)   Judgment of the Hon’ble Supreme Court dated: 05.08.2005 in Jacob Mathew V/s. State of Punjab & Another – this citation is the repetition of citation as noted above in serial No.4.

(iv)   Judgment dated: 14.07.2013 passed by the Learned Delhi District Court in Shri Shankar Lal V/s. Medical Superintendent.  In this case it is held that, a suite instituted without compliance of Section 80 of CPC against medical officers being Government public servants is untenable. 

(v)    Judgment dated: 08.05.2014 of the Hon’ble State Consumer Disputes Redressal Commission in Dr. Kapil Dev Sharma V/s. Smt. Saroj Bala.  This is repetition of the citation noted at serial No.10. 

(vi)   Judgment dated: 17.02.2009 of the Hon’ble Supreme Court of India in Martin F. D’Souza V/s. Ishfaq.  As per the principles enunciated in this case it is held that, the courts and the consumer For a are not experts in medical science, and must not substitute their own views over that of specialists.  That the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money.  It is further held that it should be remembered that sometimes despite their best efforts the treatment of a doctor fails, this does not mean that the doctor or the surgeon must be held to be guilty of medical negligence unless there is some strong evidence to suggest that he is.

(vii)  Judgment dated: 08.03.2010 of the Hon’ble Supreme Court of India in V.Kishan Rao V/s. Nikhil Super Specialty Hospital.  As per the principles enunciated in this citation there is a clear distinction between degree of negligence in criminal law and civil law.

(viii) Judgment dated: 13.01.2015 passed by the Hon’ble National Consumer Disputes Redressal Commission in M/s. Pragma Hospital & Others V/s Manjit Kaur & Others.  As per the principle enunciated in this citation the OP-3 therein was trained in Ayurveda System of Medicine and not registered with MCI and the OP-4 therein was not competent to be employed in the hospital, and hence under the circumstances the OP-2 being civil surgeon therein was held medically negligent as he had failed to perform his duties.

13.   With Memo dated: 22.07.2016 the learned counsel appearing for the Ops has submitted following medical literature:-

“Medical literature of Nelson Textbook of Pediatrics, 20^th Edition, Volume-1.”

14.   Heard the oral arguments as advanced by the learned counsel appearing for the complainant and that of the learned counsel appearing for the Ops.

15.   Therefore the only point that does arise for our consideration in this case is:-

“Whether this Forum has jurisdiction to entertain the complaint?”

16.   Finding of this District Forum on the above stated point is in the Negative for the following :-

REASONS

17.   It is worth to note that it is contention of the complainant that, he had taken the said child on 11.11.2014 to the said hospital at Kolar run by the Ops.  It is also his definite case that the OP-1 diagnosed the fever as dengue.  Though there could be conflicting version with regard to fees charged by the Ops and paid by the complainant, in as much as Exhibit-P.7 discloses that, the Ops issued cash Memo on 15.11.2014 for Rs.4,200/-; the complainant/PW-1 states in the answer to cross-examination at Para-9 to be found on Page-3 that, the Ops had taken advance of Rs.12,000/- and charged for medicines in a sum of Rs.38,000/- and above.  For the time being suffice to observe that against the consideration such medical services were rendered and even when the said child is no more, the complainant being a father of the deceased child would become consumer and certainly he can submit a complaint with regard to contended medical negligence.  Why for that even the mother of the said child by name Nagaveni (reliance placed on Exhibit-P.7 copy of the said cash Memo) could also be the complainant.  However non-joining of this Smt. Nagaveni, mother of the said child and wife of the complainant would lose its significance for the reasons to be stated hereafter we are to hold that this Forum has no jurisdiction to entertain the complaint on hand and hence this observation would only be of academic interest.

18.   This complaint is not restricted pinpointing about the medical negligence committed by these Ops while treating the said child as long as it was in their hospital.  The complainant besides making allegation that, the Ops imposed discharge because of their incapability to treat the child and hence he was constrained to approach the Manipal Hospital in Bangalore, wherein, the child breathed its last, on 20.11.2014; he has raised other contentions which are inseparable from the contended cause of medical negligence.

19.   Again we are to note at this juncture that, the Ops have contended that, the death took place on 20.11.2014 almost 06 days after the discharge of the said ailing child from their hospital and hence Manipal Hospital shall be necessary party and the complaint without such necessary party is not maintainable.  This non-joinder of necessary party again would lose its significance as, for the reasons to be noted hereafter we lack the necessary jurisdiction to entertain the complaint on hand.  Therefore if we to concentrate on this contention of non-joinder of necessary party, it would only be futile effort without any meaningful result.  Hence we do not attach much importance to the contention of non-joinder of said Manipal Hospital being a necessary party.

20.   The first and foremost contention taken up by the complainant in Para-25 of the complaint which stands reflected again in Para-25 of the affidavit evidence by way of examination-in-chief is that, these OP Nos.1 to 3 were guilty of offences made punishable Under Sections. 269, 284, 287, 320, 322, 324, 338, 491, 24 and 25, as well 107 of IPC and other applicable penal provisions to this case on hand.  What are the other penal provisions, the complainant is yet to spell-out.  Besides these allegations have been resisted by the Ops through their written version and also the said affidavit evidence of the OP-1/DW-1.  When the complainant intends to press in to service the said aspect in evidence in continuation and confirmation of such a plea, by that he expects us to give a finding on it for which we lack necessary jurisdiction in as much as under the relevant provisions of the Consumer Protection Act, 1986 we can entertain the complaint only with regard to medical negligence as far as this case is concerned and not beyond that.

21.   By the way, we make cursory glance over the said contended penal provisions of IPC.  Without wasting much time we are to observe that in chapeter-2 under the title general exception in IPC Section 24 deals with definition of dishonesty and Section 25 deals with definition of fraudulently, so these are not penal provisions.  Likewise, Section 320 of IPC, explains 08 categories of cases which could be termed as grievous hurt.  So, this provision is not a penal provision.  Coming to Section 322 of IPC it is also defining clause as to what is meant by voluntarily causing grievous hurt.  Therefore it is also not a penal provision.  However the complainant maintains a plea hat these are the penal provisions with which we cannot agree.  However our agreeing or not agreeing would be immaterial as we cannot probe in to the matter for want of jurisdiction on the subject.

22.   Section 269 of IPC deals with penal provision for negligent act likely to spread infection of disease dangerous to life.  This offence is a cognizable besides being bailable and triable by any magistrate.  Section 284 of IPC deals with negligent conduct with respect to poisonous substance and offence is cognizable and bailable besides being tried by any Magistrate. Section 287 of IPC deals with negligent conduct with regard to machinery and penal provisions have the very same features as that of Section 284 IPC.

23.   Section 324 of IPC speaks with regard to voluntarily causing hurt and not grievous hurt, but by act to be committed by making use of dangerous weapons or means. This offence is also cognizable, non-bailable, of course triable by any Magistrate.  Offence made punishable Under Section 338 of IPC is for causing grievous hurt by act endangering life or personnel safety of others, so rashly or negligently.  This penal provision is also cognizable; bailable and triable by any Magistrate.

24.   Offence made punishable Under Section 491 of IPC is with regard to breach of contract to attend and supply wants of helpless person.  Of course this offence is non-cognizable but bailable and triable by any Magistrate.  Section 107 of IPC speaks of abetment to commit offence. 

25.   By simply pleading and giving bald evidence the complainant cannot afford to press in to service that this forum should presume commission of such offences and draw inference with regard to contended medical negligence.  Besides we are mindful of the penal provisions punishable Under Sections 269, 284 and 287 which deal with negligent act likely to spread infection of disease dangerous to life; and with regard to dealing with the poisonous substance and with regard to machinery respectively.  We are legally prevented from probing in to this aspect, for, it requires detailed probe by recording and taking in to account the voluminous evidence which requires full-pledged trial.  None of the provisions of the Consumer Protection Act, 1986 would permit us to do so.

26.   It is worth to note that penal provision Under Section 324 of IPC is with regard to voluntarily causing hurt by making use of dangerous weapon or means and necessarily mensrea is required for commission of the offence and mere negligence would not attract applicability of this provision.  And at any rate it is up to the complainant to establish as to how these Ops were guilty of commission of offences with intention and certain other offences where intention is not involved like offence made punishable Under Section 338 of IPC.  And again we are to repeat that this kind of probe requires a detailed trial of the case by taking in to consideration necessary voluminous evidence to be led.  Hence this Forum lacks jurisdiction.

27.   Coming to offence made punishable Under Section 491 of IPC we are to observe that again we lack jurisdiction even to receive the evidence and give our finding in as much as it requires an evidence to be led as to what were the terms of the contract between the complainant and the Ops and how the breach came to be committed.  Thus we are to observe that we lack necessary jurisdiction to go in to these allegations so as to give our definite findings. 

28.   Before parting at this juncture we are to observe that if at all the complainant is desirous of getting the benefits to claim damages on account of the commission of said offences he shall be entitled to do so only after effective trial of these Ops in a prosecution to be launched against them before jurisdiction criminal court and not otherwise.

29.   Here is the complainant who intends to rely on Exhibit-P.9 the information lodged with the PSI of Town PS, Kolar and this written information is dated: 21.11.2014.  However the seal of the said PS for having received this information is dated: 12.12.2014.  Why such inordinate delay is there in submitting the said information on the part of the complainant shall have to be gone in to and we have no necessary jurisdiction to do so.  Besides we are to observe that the recitals in this Exhibit-P.9 do not make reference to any one of the penal provisions just noted above by us.  Therefore again it would become a requirement on the part of the complainant to elicit as to why he became reticent while submitting such an information to the said police officer vide Exhibit-P.9 with regard to said alleged offences made punishable Under Sections 269, 284, 287, 324, 338, 491 read with Section 107 of IPC and the complainant could do so only before necessary criminal court and then civil court to claim damages, that too, after getting conclusively successful results in criminal court with regard to the contended offences. 

 

30.   Unless and until the said offences contended stand conclusively proved there cannot be any inference that these Ops since guilty of said offences are accountable for negligence.  And even otherwise scope for claiming compensation in such event shall not be before this Forum as this Forum lacks jurisdiction as per the provisions of the Consumer Protection Act, 1986.  And if at all claim for such compensation on proof of such allegations of offences shall be before jurisdictional civil court.  Since Exhibit-P.8 is nothing but repetition of Exhibit-P.9, but addressed to S.P we need not make any separate discussion on it, for the discussion and conclusion we have arrived at while taking in to consideration Exhibit-P.9 would serve the same purpose.

31.   The second contention is with regard to utilizing of inferior quality medicines coupled with plea of the complainant to have complaint against the companies that supplied such medicines.  And further contention in this context is with regard to establishment of unauthorized medical shop within premises of the said Sri Chowdeshwari Multi Specialty Hospital (reliance place on Para-13 of the complaint).  These allegations have been refuted by the Ops, per contra, it is contended that, the said medical shop is authorized one and quality based medicines were/are being sold.  (reliance placed on Para-13 of the written version). 

 

32.   In this context we are to observe that, with regard to quality, quantity, strength, (for example composition of saline or glucose being given in drips by percentage) expiry date of medicines, maintaining of timelines in administering and or giving medicines including qualifications of Doctors/surgeons/physicians this forum will have jurisdiction to taken in to consideration the relevant pleas and evidence adduced by either parties, whereas as per the provisions of the Consumer Protection Act, 1986 we lack jurisdiction to consider the plea of legality of establishment of medical shop within the premises of the said hospital, though the Ops in support of their such rival contention have come up with relevant evidence before us being documentary evidence vide Exhibit.D.20 copy of the license issued by the Assistant Drug Controller and Licensing authority dated: 25.06.2014 which is in the form of granting and renewal.  Since the complainant mindfully insists that such establishment of the said medical shop is unauthorized one, and this cause is intermingled with the cause of medical negligence, we repeatedly observe that we lack the jurisdiction to go in to the merits of this issue and necessarily the complainant shall have to have recourse to get redressal in appropriate jurisdictional civil court only.

 

33.   The next contention before us is with regard to inexperienced nursing staff being utilized to give treatment to the said child.  And further contention is that, the said inexperienced nursing staff posed themselves as qualified and experienced persons and the fees came to be charged as if services of qualified and experienced nursing staff were given.  It is highly a complex issue.  Though we have every jurisdiction to determine the qualification or otherwise of the OPs including the nursing staff regarding which there is ample evidence adduced before us by the Ops by way of Exhibit-D.10 to D.12 being copies with regard to registration of medical practice as issued by KMC in favour of OP Nos.1 to 3 Exhibit-D.13 to D.17 being Xerox copies of 05 certificates in respect of nursing staff, we lack every jurisdiction to consider plea of the complainant that at the relevant time the nursing staff being inexperienced and unqualified posed themselves as qualified and experienced nursing staff and the charges came to be claimed as if such nursing staff were qualified and experienced. 

 

34.   For to proceed in this aspect a detailed probe is required warranting a regular trial to ascertain truth or otherwise of the said aspect.  We again observe that since this cause for which we lack jurisdiction to go in to; is integrated part of the cause of medical negligence alleged against these OP Nos.1 to 3.  So we hold that, for want of jurisdiction this complaint is untenable before us.  And if at all the complainant feels aggrieved and hence he has a felt need to get redressal he shall have to approach the competent Civil Court.

 

35.   Exhibit-D.9 is Xerox copy of the certificate of registration issued by the Government of Karnataka through Karnataka Private Medical Establishment Authority disclosing that, OP-1 is legally competent to run M/s. Sri Chowdeshwari Multi Specialty Hospital being a empanelled registered nursing home with effect from 09.01.2013.  So as on the date of the complaint the OP-1 in particular and the OP Nos.2 and 3 in general were legally competent to run the said nursing home, but, allegation of the complainant is that, the Ops through this multi specialty hospital had been indulged in attracting the public so as to deceive them in as much as the hospital did not have any facility and medical experts in different subjects and even when there is no provision of medical treatment (reliance placed on Para-8 of the complaint). 

 

36.   For the reasons noted above undoubtedly we are in a position to hold that the OP Nos.1 to 3 are qualified doctors and there is a legal establishment of the said multi specialty hospital and with regard to equipments available in the said hospital there is voluminous documentary evidence vide Exhibit-D.18 running in to 62 pages giving particulars of equipments the said hospital has.  But we cannot decide the further cause attached with regard to deception resorted to, by these Ops by attracting the public as contended.  Again this is a very complex issue demanding elaborate evidence to justify such an allegation.  Besides this contention would echo that the complainant suffered at the hands of these Ops as a member of the public.  Certainly, we lack jurisdiction to decide this issue consequently we are compelled to direct the complainant to approach the appropriate jurisdictional Civil Court to get the remedy.

 

37.   Another contention raised by the complainant vide para-20 of the complaint is that, there is no display of medical charges for being claimed and the particulars of the staff.  We have a very limited jurisdiction to go in to the aspect of the doctors and the personnel who participated in giving treatment to the said child.  The grievance of the complainant with regard to non-display of the said particulars leading right to claim compensation would require elaborate evidence and in the summary procedure prescribed as per the provisions of the Consumer Protection Act, 1986 we lack jurisdiction to address this issue also.

 

38.   We are mindful that the complainant has pleaded with all responsibility contending that, he spent Rs.15,00,000/- for the treatment of the said child in Manipal Hospital, Bangalore, in addition to Rs.10,000/- spent towards medical treatment in the said hospital run by the OP Nos.1 to 3 and by way of compensation for the death of the child he is entitled to sum of Rs.25,00,000/-.  This total sum would come to Rs.40,10,000/-.  (reliance placed on Paras – 26 & 27 of the complaint). 

 

39.   It is worth to note that, the complainant while giving evidence in answer to the cross-examination in Para-9 to be found on Page-3 has asseverated that, he paid advance of Rs.12,000/- to the Ops and for medicines he had spent in a sum of Rs.38,000/-.  We have document vide Exhibit-P.7 that total charge claimed and received is only in a sum of Rs.4,200/-.  This is a serious issue for the complainant spent Rs.50,000/- towards medical treatment while said child was in the hospital of the OP Nos.1 to 3.  The detailed probe is required in the very interest of the complainant as to how the receipt only for Rs.4,200/- came to be issued by the Ops, and the complainant is yet to explain as to what made him to contend that, the medical expenses incurred was to the extent of RS.10,000/-, which is not even in agreement with Exhibit-P.7 disclosing receipt of Rs.4,200/-. 

 

40.   In para-8 of cross-examination the complainant states that, Rs.7,00,000/- and above came to be spent for medical treatment in Manipal Hospital, Bangalore.  However his claim in paras-26 and 27 of the complaint and affidavit evidence is that, Rs.15,00,000/- came to be spent.  Then needful documentary evidence is required to ascertain which version is truthful.  It cannot be done in summary procedure.  A detailed probe is necessary in appropriate jurisdictional Civil Court.

 

41.   And at any rate to ascertain the truth by clearing the anomaly would require a greater probe which is impermissible during summary inquiry as prescribed in the provisions of the Consumer Protection Act, 1986.  The fees structure for such a claim for Rs.40,10,000/- shall be Rs.2,000/-.  (reliance on schedule as per Rule-8 of the Karnataka Consumer Protection Rules 1988).  Anyway the intention to make such a claim would oust the pecuniary jurisdiction of this Forum and it shall necessarily be the Hon’ble State Consumer Disputes Redressal Commission, Bangalore, which will have jurisdiction.  We are unable to understand the logic of the complainant to forego unmindfully the said claim and forcefully restrict the global claim for compensation of Rs.20,00,000/-?  He should be very meticulous and he should explain as to why the reduced claim of Rs.20,00,000/- came to be preferred by overlooking the claim which ought to have been for Rs.40,10,000/-. 

 

42.   In any way the claim for compensation through the very present complainant itself against these Ops is not merely for medical negligence contended but with deeply intermingled causes with regard to commission of the said offences Under IPC, coupled with other applicable penal provisions (reliance on para-25 of the complaint), establishment of unauthorized medical shop within the premises of the said multi specialty hospital which to have inferior quality medicines regarding which the complainant is to have complaint against the companies that supplied such medicines (reliance placed on Para-13 of the complaint), non-display of medical charges to be levied and the staff particulars (reliance placed on para-20 of the complaint) and though the claim could be for medical charges in sum of Rs.15,10,000/- and compensation for the death of the said child in a sum of Rs.25,00,000/- (reliance placed on para-27 of the complaint) and the cause for reducing the claim is bound to be probed into; in conclusion we affirm and reaffirm that on account of insist of adjudication of this intermingled causes along with the contended cause of medical negligence, as this forum lacks jurisdiction to adjudicate the complaint with such issues, it has become necessary on our part to direct the complainant to approach the appropriate jurisdictional Civil Court.  And we also make an observation that in case aspect of limitation to arise for consideration, then the complainant can have recourse to benefit available Under Section 14 of the Limitation Act, 1963.

 

43.   Since the complainant has made these Ops to face the present unnecessary litigation though the litigations could have been before the appropriate jurisdictional Criminal Court and Civil Court we are of the definite opinion that, these Ops do deserve awarding of costs which we shall indicate while passing the final order quite hereafter.

44.   Before parting we emphatically make our observations that none of the principles in the said citations as noted above became necessary for us to invoke; like-wise for the medical literature relied by either side too.  Hence we proceed to pass the following:-

ORDER

(01)  For foregoing reasons the present complaint stands dismissed with costs of Rs.5,000/- for being paid by the complainant to the OP Nos.1 to 3.

(02)  Send a copy of this order to both parties free of costs.

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 27^th DAY OF JULY 2016)

 

 

 

MEMBER                         MEMBER                  PRESIDENT

 

 

 

ANNEXURES

1) LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF COMPLAINANT:-

PW.1        ::      Sri. G. Krishnamurthy

2) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COMPLAINANT:-

Exh.P.1::   Office copy of legal notice dated:  nil addressed to OP-2.

Exh.P.2::   Office copy of legal notice dated: 12.12.2014

                   addressed to OP-1.

 

Exh.P.3::   Office copy of legal notice dated: nil addressed to

                   OP-3.

 

Exh.P.4::   Internet copy pertaining to call for applications for

                   fellowships and support to institutions under training

                   under the schemes of HRD on health research.

 

Exh. P.5::  Xerox copy of three postal acknowledgments.

 

Exh.P.6::   Xerox copy of seven postal receipts.

 

Exh.P.7::   Xerox copy of cash memo dated: 15.11.2014 issued by

                   Sri. Chowdeshwari Multi Specialty Hospital, Kolar.

 

Exh.P.8::   Copy of letter dated: 12.12.2014 addressed to S.P.,

                   Kolar.

 

Exh.P.9::   Similar copy of letter dated: 21.11.2014 addressed to

                   P.S.I., Kolar Town PS

 

Exh.P.10:: Xerox copy of in-patient record running into 14 sheets

                   issued by Sri Chowdeshwari Multi Specialty Hospital,

                   Kolar.

 

Exh.P.11:: Xerox copy of death summary dated: 20.11.2014 issued by Manipal Hospital, Bangalore, in two sheets.

 

Exh.P.12:: Xerox copy of the requisition dated: 08.12.2014

                   addressed to OP-1.

 

Exh.P.13:: Xerox copy of discharge summary dated: 11.11.2014

                   issued by Sri Chowdeshwari Multi Specialty Hospital,

                   Kolar.

 

Exh.P.14:: Xerox copy of discharge summary dated: 06.12.2014

                   issued by Sri Chowdeshwari Multi Specialty Hospital,

                   Kolar.

3) LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF OP:-

 

DW.1        ::       Dr.Beeregowda.

 

 

4) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF OP:-

 

Exh.D.1::   Xerox copy of in-patient record running to 20 pages in

                   respect of male child to Nagaveni.

 

Exh.D.2::   Xerox copy of discharge summary of the patient.

 

Exhs.D.3 to 8:: Xerox copy of six investigation reports.

 

Exh.D.9::   Xerox copy of Ops hospital registration.

 

Exhs.D.10 to 12:: Three Xerox copies of registration for Medical

                             Practice as issued by KMC.

 

Exhs.D.13 to 17::Xerox copies of five certificates in respect of

                             nursing staff.

 

Exh.D.18:: Xerox copy of equipment particulars of Ops hospital

                   running to 62 pages.

 

Exh.D.19:: Xerox copy of “WHO STANDARD BOOK” running to

                   111 pages in respect of Dengue fever.

 

Exh.D.20:: Xerox copy of the letter dated: 25.06.2014 issued by

                   Assistant Drugs Controller and Licensing Authority,

                   Drugs Control Department, Kolar Circle, Kolar,

                   running to 06 pages.

 

Exh.D.21:: Xerox copy of Dengue guidelines for Diagnosis issued

                   by World Health Organization consisting of 26 sheets.

 

Exh.D.22:: Xerox copy of the Journal consisting of 16 sheets

                   pertaining to Radiology of Infectious Diseases, Vol-1.

 

 

 

 

 

 

MEMBER                              MEMBER                    PRESIDENT