STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

1.    Shri Jai Raja Garg husband of late Mrs. Nitu Garg, aged 35 years resident of House No. 877, Sector 9, Panchkula (Haryana).

2.    Miss Archie Garg (minor) d/o of late Mrs. Nitu Garg, aged about 8 years, through her father and natural guardian Shri Jai Raja Garg, resident of House No. 877, Sector 9, Panchkula (Haryana).

3.    Master Bhavya Garg (minor) son of late Mrs. Nitu Garg, aged about 3 Years, through his father and natural guardian Shri Jai Raja Garg resident of House No. 877, Sector 9, Panchkula (Haryana).

...Petitioners/Complainants

Versus

1.     Dr. Jagdeep Riar, Consultant Gynecologist & Obstetrician, Dogra Nursing Home, Kothi No. 8, Sector 19-A, Chandigarh UT.

2.    Dogra Nursing Home through its Proprietor, Kothi No. 8, Sector 19-A, Chandigarh UT.

3.     Dr. N.S. Sandhu, General Surgeon, Dogra Nursing Home, Kothi No. 8, Sector 19-A, Chandigarh UT.

4.     Dr. Ritambhra, Assistant Surgeon, Dogra Nursing Home, Kothi No. 8, Sector 19-A, Chandigarh UT.

5.    The New India Assurance Co. Ltd., SCO No. 58, Sector 26-C, Chandigarh through its Divisional Manager (Insurer of OP No.1)

6.    The New India Assurance Co. Ltd., SCO No. 15, Sector 30-D, Chandigarh through its Divisional Manager (Insurer of OP No. 2)

7.    National Insurance Co. Ltd., SCO No. 133/135, Sector 17-C, Chandigarh through its Divisional Manager (Insurer of OP No. 3)

8.    The United India Insurance Co. Ltd., Divisional Office No. 4, Mercantile Bank Chambers, 19, Cawasji Patel Street, PB-1304, Hutatma Chowk, Fort, Mumbai-400001. through its Divisional Manager (Insurer of OP No. 4)

...Respondents/Opposite Parties

Revision Petition under Section 17(1) (B) of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued by:  

Sh. Neeraj Sharma, Advocate for the Revision Petitioners.

Sh. Munish Kapila, Advocate for respondent No.1.

Ms. Alka Sareen, Advocate for respondent No.2.

Respondent No.3 exparte.

Sh. Surinder Mohan, Advocate for respondent No.4.

Sh. Vinod Chaudhary, Advocate for respondents No.5 and 6.

Sh. R.C. Gupta, Advocate for respondent No.7.

Sh. Sukaam Gupta, Advocate for respondent No.8.

MRS. NEENA SANDHU, MEMBER

1.                    This revision petition is directed against the interim order dated 15.05.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the application, seeking Expert Medical Board Opinion, filed by the complainants, (now the petitioners) by observing as under:-

“6.            It is a settled proposition of law that the Court can neither step into the shoes of the complainants to produce the evidence to prove their case nor can create the evidence in favour of the complainants. To succeed in the complaint, it is the duty casted upon the complainants to file the medical literature or expert opinion to prove their case. No doubt, the Court of its own motion has the power to issue a direction to the Expert Medical Board for expert opinion in case it comes to the conclusion that the same is required for proper adjudication of the lis but in the case in hand, the application has been moved by the complainants for referring the pleadings of the parties to an Expert Medical Board for an opinion with regard to the medical negligence, therefore, we are of the opinion that if the present application is allowed, it will amount to creation of evidence in favour of the complainants, which is not permissible by law.

7.             As a result of the above discussion, the application is dismissed being devoid of any merit”.

2.                    The Counsel for the petitioners/complainants submitted that the complainants filed a consumer complaint before the District Forum on 20.07.2010 seeking compensation and punitive damages against the Opposite Parties/respondents for the acts of medical negligence leading to the death of Smt.Nitu Garg. He further submitted that the complainants moved an application for referring the pleadings of the parties, to an Expert Medical Body/Board, for an opinion with regard to medical negligence on 02.03.2012 before the District Forum, stating therein, that despite best efforts of the complainants, no medical professional was ready and wiling to give an expert opinion, in writing, duly supported by the affidavit.  He further submitted that the primary grouse of the complainants was enshrined in para No.18 of the complaint, whereas, the categorical stand of Opposite Parties No.1 to 4, was that the patient-Smt.Nitu Garg during C-Section conducted by Opposite Party No.1, and further managed by the other Opposite Parties, suffered from “Rectus Sheath Haematoma” and the same was correctly diagnosed and surgically managed, so there was no medical negligence, on their part. He further submitted that, in such state of affairs, and for an effective adjudication of the lis, the opinion of an Expert Medical Board of doctors, was necessary, to be sought with regard to the line of treatment, adopted by the Opposite Parties, and the subsequent course of management of the patient from the day of C-Section till her demise. He further submitted that the petitioners had moved the application to seek validation of the medical treatment, including the two surgeries, carried out, on the patient/Smt.Nitu Garg by an expert or independent Medical Board, so as to assist the District Forum, to decide the case, in a better and effective manner. He further submitted that the complainants were ready to bear the fee/expenses, to be incurred, for obtaining such opinion. In support of his submissions, he placed reliance upon the following judgments –

(a)    V.Kishan Rao Vs. Nikhil Super Speciality Hospital and another, III(2010) CPJ-1(SC)

(b)    Kailash Malhotra Vs. Etnre for Sight (Hospital) and Others IV(2011) CPJ 96 (NC) and

(c)    Shyam Bihari Pandey Vs. Dr.Vishwanath Chowdhary and others, IV(2011) CPJ 87. 

He further submitted that the order of the District Forum is liable to be set aside, being illegal. 

3.                    On the contrary, the Counsel for the respondents/Opposite Parties submitted that the application filed by the complainants, was nothing but an abuse and misuse of process of law as the same, if all, should have been filed alongwith the complaint, but it was filed by them on 02.03.2012 i.e. after about one and a half year of the filing of the complaint.  They further submitted that the very purpose of filing the application by the complainants, was to create evidence by the District Forum, in their favour, which was not sustainable in the eyes of law. They further submitted that the application of the complainants, was rightly dismissed by the District Forum.

4.                    We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully. 

5.                    After giving our thoughtful consideration to the rival contentions and, on going through the record carefully, we are of the considered opinion that the revision petition deserves to be accepted, for the reasons to be recorded hereinafter. Undoubtedly, the present case relates to the death of Smt.Nitu Garg, which allegedly took place, due to medical negligence on the part of Opposite Parties No.1 to 4. It is also an admitted fact that C-Section surgery was conducted upon Smt.Nitu Garg on 07.07.2009 by     Opposite Parties No.1 to 4. There was allegedly some internal bleeding, after C-Section surgery, for which laprotomy was conducted by Opposite Parties No.3 and 4, but the internal bleeding, as alleged could not be stopped, due to which the patient suffered some post operative complications. The patient was taken to Dhawan Hospital, SCO No.19, Sector 5, Panchkula on 08.07.2009 and when she did not show any signs of stabilization or recovery, she was referred to the Postgraduate Institute of Medical Education and Research, Chandigarh(PGIMER) where, ultimately, she died on 30.07.2009. In this view of the matter, we are of considered opinion, that in order to ascertain, as to whether, it was a case of medical negligence or not, it would be just and proper if the medical opinion of some medical experts/medical institution be sought. It is settled principle of law that every lis/dispute should normally be decided on merits, than by resorting to hyper-technicalities. The Courts/Tribunals/quasi Judicial Foras, after all, are meant to advance the cause of justice than to thwart the same. If the hyper-technicalities and the substantial justice are pitted against each other, then the latter shall prevail over the former. The revision petitioners have indicated the reasons as to how they are handicapped in adducing the evidence of medical expert(s) to prove the medical negligence, on the part of Opposite Parties No.1 to 4. Since the case relates to the alleged medical negligence, for just and fair adjudication of the dispute, in our considered view, the opinion of the medical experts/medical institution well equipped with the medial experts, is eminently essential. Such evidence is also essential to enable the Consumer Fora, to decide the consumer dispute in a proper manner, and pronounce the, ultimate decision, in a better way. In this view of the matter, allowing of the application, for referring the case to some Medical Experts/Board would not amount to creating evidence in favour of the complainants and against the Opposite Parties.  Rather the same is very essential to determine whether Smt.Nitu Garg during C-Section, conducted by Opposite Party No.1 and further managed by Opposite Parties No.2 to 4 suffered from “Rectus Sheath Haematoma”, and the same was correctly diagnosed and surgically managed or not. Our view is supported by the law settled in V.Kishan Rao Vs. Nikhil Super Speciality Hospital and another, III(2010) CPJ-1(SC), in which it was held that “When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence”.  The District Forum took a very narrow and pedantic view by holding that if the application was allowed, that would amount to creating evidence, for the complainants, forgetting that Consumer Foras, being quasi-judicial Tribunals, are not to decide the disputes, on the basis of inchoate and incomplete evidence, resulting into injustice to any of the parties. The District Forum was required to take a liberal view of the matter, for coming to the conclusion, whether the evidence sought to be got produced, was essential for the fair, just and effective decision of the case. The District Forum did not advert to this aspect of the matter, as a result whereof, it failed to exercise the jurisdiction vested in it, leading to the dismissal of the application, in question. The order of the District Forum, thus, being illegal, is liable to be set aside.

6.                    No doubt, the complainants filed the application, in question, before the District Forum in March, 2012, at a very belated stage, i.e. after about one and a half years, in the complaint, relating to 2010, yet for this lapse on their part, substantial justice could not be allowed to suffer, by disallowing the same. According to the Consumer Protection Act, 1986, every complaint is required to be decided, within 3 months, from the date of appearance of the Opposite Parties, except in cases, where the Tribunal requires analysis of the goods, from the laboratory, for which the outer limit for disposal is fixed as five months. The Act seeks to provide a simple, inexpensive, and speedy redressal of grievances of the consumers. For highly belated delay, in filing the application, under disposal, the Opposite Parties, are required to be compensated, by way of imposition of heavy costs, on the complainants.  Costs of Rs.20,000/- if imposed, upon the complainants, for highly belated delay, in filing the application, under disposal, shall meet the ends of justice. 

7.                    For the reasons recorded above, the revision petition, is accepted, subject to payment of costs of Rs.20,000/-. The payment of costs, shall be a condition precedent. The order of the District Forum is set aside.

8.                    The District Forum is directed to seek medical opinion from the committee of doctors of an Institute, specialized in the field(s) relating to which medical negligence is attributed, other than Postgraduate Institute of Medical Education and Research, Chandigarh (PGIMER) and thereafter decide the case, on merits, in accordance with law, within three months from 23.08.2012 positively. The expenses for seeking such opinion, shall be solely borne by the complainants/revision petitioners.  

9.                    The parties are directed to appear, before the District Forum, on 23.08.2012 at 10.30.a.m.

10.                 The District Forum record, be sent back, immediately, alongwith a certified copy of this order.       

11.                 Certified copies of this order be sent to the parties, free of charge.

12.                 After compliance of the order and completion of file, the same be consigned to the record room.

Pronounced.                                                                          Sd/-

  09 .08.2012                            [JUSTICE SHAM SUNDER[RETD.]

                                                                                 PRESIDENT         

                                                                                                            Sd/-                                                          [NEENA SANDHU]

                                                                                                MEMBER