1.       The present three Revision Petitions (RPs) have been filed by the Petitioners against Respondents as detailed above, under section 21(b) of Consumer Protection Act, 1986. As all these RPs involve similar facts and questions of law and have been filed against the similar order of State Commission, these have been taken up together. However, 3822/2017 has been taken as lead case. All the RPs have been filed against the order dated 21.07.2017 of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’), in First Appeals (FAs) No. 285/2016 (filed by Legal Heirs of the deceased for enhancement of compensation), Appeal No. 367/2016 and 332/2016 (filed by Respondent -1 and Respondent-2), in which order dated 02.03.2016 of District Consumer Disputes Redressal Forum, Sirsa (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 85/2014 was challenged, inter alia praying for setting aside the order passed by the State Commission.

2.       In RP 3822/2017, the Revision Petitioners (hereinafter also referred to as Complainants) were Appellants before the State Commission and Complainants before the District Forum, Respondent-1 (hereinafter also referred to as  OP-1/Hospital) was Respondent-1 before the State Commission and OP-1 before the District Forum  and Respondent-2 (hereinafter also referred to as OP-2/Insurance Company) was Respondent-2 before the State Commission and OP-2 before the District Forum. In RP 3941/2017, R-1 was the Appellant and In RP 3942/2017, R-2 was the Appellant before the State Commission).

3.       Notice was issued to the Respondents on 28.02.2018.  Parties filed Written Arguments/Synopsis on 14.12.2018 (Petitioners), 23.01.2023 (Respondent-1) and  23.04.2024 (Respondent-2).

4.       Brief facts of the case, as presented by the Complainant and as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that:-

On 30.12.2013, Suman (deceased) wife of Petitioner No.1 and mother of Petitioners-2 to 5 admitted in Respondent-1 hospital due to fever and respiratory disorder.  After examining the patient, OP-1 hospital diagnosed acute respiratory disorder (ARDS).  Blood test of the patient was done by the OP-1 hospital and total platelet count of patient was reported 94,000 against normal range of 1,50,000 to 4,00,000 and malaria  parasite was reported as negative.  On 31.12.2013, besides ARDS problem, the patient also developed urine problem facing difficulty in passing the urine.  The condition of patient started deteriorating.  On 01.01.2014, blood test was conducted, which revealed that the platelet of the patient fallen to 18000 count against normal count of 1,50,000 to 4,00,000.  The OP-1 did not check-up the patient despite the patient’s deteriorating condition.  OP-1 checked up the patient during routine check up at 6-00/6-30 P.M. and prescribed    some medicines, without informing the Petitioner about the complication being faced by the patient.  The condition of patient further started deteriorating.  OP-1 was called at about 9-30 p.m. and patient was checked-up, the petitioner was informed to immediately arrange platelet from blood bank of Dera Sacha Sauda for administering into the patient.  When the petitioner was on his way for arranging for platelet, OP-1 asked him to return back as the patient’s condition has become very critical and was to be taken to higher medical institute. The patient was discharged at about 10-25 p.m. in a very serious and critical condition. The patient was taken to Sukhda Hospital, Hisar at about 1.00 A.M. during the same night,  where the patient was declared a patient of malaria & dengue as positive with acute respiratory disorder and urine problem.  On 2^nd January, 2014 at about 10-30 p.m. the patient died at Sukhda Hospital, Hisar.  The Petitioners filed consumer complaint before the District Forum for compensation and other relief on account of gross negligence and deficiency in service on the part of OP-1 in providing the service to the patient.                                                                                                                                                                                            

5.       Vide Order dated 02.03.2016, in CC No. 85/2014 the District Forum allowed the complaint and directed the OPs to pay jointly and severally a sum of Rs.5,40,000/-, within one month from the date of order, failing which, the complainants shall be entitled for the relief of interest @9% p.a. from the date of institution of the complaint, i.e. from 25.06.2014 till realization.  OPs were also directed to pay Rs.11000/- as litigation charges.   

6.       Aggrieved by the order dated 02.03.2016 of the District Forum, both the  OPs- United India Insurance Company India Ltd. (FA/332/2016)  and Dr. Naresh Mittal (FA/367/2016) appealed before the State Commission and the Complainant also filed FA/285/2014 before the State Commission for enhancement of claim.  The State Commission vide order dated 21.07.2017, allowed Appeal Nos. 332 and 367 of 2016 filed by OPs-1 & 2 and set aside the order passed by the District Forum.  The State Commission dismissed the Appeal No. 285/2014 filed by the Complainants.

7.       Petitioners/complainants have challenged the said Order dated 21.07.2017 of the State Commission mainly on following grounds:

(i)      The impugned order is erroneous, illegal, perverse, unjustified, unwarranted and contrary to law.  The State Commission by passing the impugned order has committed gross miscarriage of justice to the petitioners. The State Commission has exercised its jurisdiction illegality and material irregularity in passing the impugned order.  OP-1 has acted negligently and deficiently in rendering service to the patient and therefore liable to compensate the petitioners for the said act under section 14(1)(d) of the C.P. Act, 1986. 

(ii)     The State Commission failed to appreciate the fact that the patient was admitted in OP-1’s hospital on 30.12.2013 with fever and respiratory disorder and OP-1 diagnosed the patient suffering from ARDS.  On 31.12.2013, the patient developed urine problem.  Despite repeated complaints made by Petitioner-1 regarding the difficulty being faced by the patient, OP-1 did not check the patient on 31.12.2013 and even did not conduct any test on the patient, as a result, the condition of the patient started deteriorating.  The act of the OP-1, i.e. not checking the patient on 31.12.2013 despite informing the difficulty being faced by the patient, itself amount to gross negligence and deficiency in service on the part of OP-1 in rendering service.

(iii)    The Forum below failed to appreciate the fact that the OP-1 discharged the patient on 01.01.2014 at about 10-25 p.m. in a very serious condition and did not provide any ambulance or ventilator or oxygen or any other facility to take the patient to higher medical institute for treatment.  The discharge summary of OP-1 shows the patient was suffering from ARDS, Thrombocytopenia, viral, malaria, headache, nausea/body ache and Urea sinus.   

(iv)    The State Commission failed to appreciate the fact that in dengue fever, the platelet count/blood test has to be conducted in multiple manner in a day. In the present case after 30^th December, 2013, no blood test was conducted on 31^st December 2013, despite the fact the patient was having respiratory disorder, fever and facing difficulty in passing urine.

(v)     The State Commission failed to appreciate the facts that burden to prove that the OP-1 was not negligent or deficient in its service in treating the patient, was on the OP-1 itself, which the OP-1 miserably failed to prove.  No documents were produced.

(vi)    The State Commission failed to appreciate the fact that the treatment record of patient from 30.12.2013 to 01.01.2014 till the discharge of the patient was in possession of OP-1 and these documents were the best piece of evidence to show whether the OP-1 was deficient in rendering service or negligent.  The OP-1 did not produce the said documents before the District Forum, therefore, the adverse presumption has been drawn against the OP-1.

(vii)   The State Commission itself has opined that “a doctor is required to be more & more careful at the time of treatment of a patient”. A little negligence on the part of the doctor can make life of the patient hell.  A doctor can help a patient by providing him best possible medicines/treatment”. In the present case, the OP-1 was gross negligent and deficient in providing service in treating the patient. The OP-1 did not check/examine the patient on 31.12.2013 and on 01.01.2014 till 6.00/6.30 p.m. despite the petitioner and his relatives again and again conveyed the OP-1’s attending staff about the deteriorating condition of the patient and asked to call the doctor for examining the patient but to no avail.  The State Commission failed to appreciate the fact that the conduct & act of the OP-1 in treating the patient fell below that of the standard of a reasonable competent practitioner in his field. 

(viii)  The State Commission failed to appreciate the facts that “Sukhda Multi Specialty Hospital” document, which clearly shows that the patient was brought on 02.01.2014 in emergency with severe respiratory distress cyanosis, bleeding PV and drowsiness.  On investigation, it was revealed that patient had dengue, malaria (PV positive), ARDS.  This clearly shows the gross negligence and deficiency in service on the part of OP-1 in treating the patient. 

(ix)    The State Commission failed to appreciate the fact that the District Forum in its order has rightly appreciated and held that “OP-1 has produced only his own swearing affidavit and some pages of principles of internal medicine.  Affidavit of the OP doctor is only repetition of his written version.  He failed to produce any other treatment record of Smt. Suman to show that he has given proper and best treatment to her.  OP doctor also failed to produce affidavit of any employee of his hospital to deny the fact that he has attended the patient as and when it was required and given best treatment and allegation of not attending the patient are false”.

(x)     The State Commission failed to appreciate the facts that the patient remained admitted from 30.12.2013 to 01.01.2014 (10.25 p.m.) with OP-1 hospital and it was the duty of OP-1 doctor to keep monitoring and examine the patient from time to time, however, the OP-1 doctor did not examine the patient on 31.12.2013 and thereafter till 01.01.2014 till6.00/6.30 p.m. This itself shows the negligence on the part of OP-1.

(xi)    The Fora below has not awarded the compensation adequately and the compensation awarded was not proper.  The fora below ought to have awarded the compensation more preferably @Rs.9,000/- per month against Rs.3,000/- per month as awarded by the District Forum.

8.      Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.1     In addition to the averments made under grounds (para 7) the petitioners contended that the patient was discharged after the condition of the patient became critical on 01.01.2014 at 10-25 P.M.  Patient was taken to Jindal Hospital and on its refusal thereafter, the patient was taken to Sukhda Hospital, Hisar at about 1.00 A.M. during the same night.  On 02.01.2014 at about 10.30 p.m., patient died at Sukhda Hospital, Hisar. On 25.06.2014, petitioners filed consumer complaint against the OP-1 before the District Forum.  The District Forum allowed the complaint holding OP-1 liable on account of negligence and deficiency in service. It is further contended that the treatment record of the patient was with the respondent-1 and the same was not produced before the District Forum to rebut the contention of the petitioner regarding negligence and deficiency in service on the part of Respondent-1 in treating the patient, particularly on 31.12.2013.  Best evidence withheld by the Respondent-1 and adverse inference ought to have been drawn against the Respondent-1.  It is settled law that if material evidence are withheld by the party who is in possession, the Court may draw adverse inference notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. It is also contended by the Petitioners that the OP-1 did not checkup the patient in the morning on 01.01.2014 and only ordered for blood test at about 10/10-30 A.M. and its result and consequence was not disclosed to the petitioners. At 6.00/6.30 p.m. prescribed the medicine with the assurance that she will become alright, despite the fact, the blood count of the patient fallen to 18,000. When the patient’s condition got critical and facing difficulty in breathing at about 9-30 p.m., asked to arrange the platelet from the blood bank and thereafter, when the petitioner was arranging the platelet, asked to take the patient to some higher medical institute for treatment. No ambulance or ventilator or oxygen or any other facility to take the patient to higher medical institute for treatment was given.

8.2     On the other hand OP-1/Respondent-1 herein contended that in the written submissions dated 14.12.2018, the Petitioners have not disclosed that on 17.05.2018, Petitioner No.1 had participated before the District Medical Board under the Chairmanship of Civil Surgeon, Sirsa, set up by order of the Haryana Medical Council. As per the decision of the said Board, the patient was treated by Respondent-1 as per protocol without any negligence.  It is further contended  that the patient visited the Respondent-1 on 30.12.2013 with complaint of headache, nausea, body ache and uneasiness for one day, there was no fever or difficulty in breathing, rashes, redness over body from the date of admission till discharge as per clinical observation and time to time investigation including ECG, X-Ray Chest and Blood Test was done.  Relatives were explained about the report.  There was no Respiratory Disorder on the date of admission till the date of discharge.  Respondent-1 had visited twice to the ward including visiting the patient and was available to the patient upon the message/call to residence of the Respondent-1, which on the 1^st Floor of the hospital.  The patient was not suffering from any urine and ARDS problem as fever and clinically conditions were normal and the medicine/treatment was given.  On the day of admission, the platelet count was 94,000, which is not an alarming condition specially when there is no fever or difficulty in breathing, rashes, redness over the body.  There is no strict formula or guidelines that if a person having 94000 platelets without having any other symptom as stated above, then doctor is bound to take the multiple blood sample in a day.  The treatment was given to the patient Suman as per the Medical Practice, commonly used by the doctors in such type of conditions.  Fresh platelets have to be administered only in the case where the platelets decreased by 10,000, specially when patient was not having any other symptoms.  After receipt of test report of Smt. Suman, nothing abnormal was observed so there was no need to conduct any test on 31.12.2013. Patient having 18,000 counts of platelets does not fall in very serious position, more particularly when there was no symptom of body redness, rashes etc. Each and every facility such as Oxygen, ventilator were available at that time but was not given to the patient as there was no requirement by the patient according to the professional knowledge, diligence and as per clinical observation.  Platelets increase only when infection is not there in the body after the antibiotic start its effect.  It is further contended by Respondent-1 that the attendants of the patient refused to keep the patient on oxygen and ventilator and asked for discharge for taking her to some higher centre and started shouting at Respondent-1 after departure of Ranbir Singh (husband of patient) for bringing the platelets from Dera Sacha Sauda, in order to avoid any conflict in between patient and Doctor the Respondent-1 made a call to the complainant-1 to return back to the hospital instead of bringing the platelets and thereafter discharged the patient with a simple reference with the treatment and with the condition as observed at that time with the record of test.  It is also contended that the vehicle for taking the patient was brought by the complainants at their own and it was their own duty to take her in the Ambulance fitted with all the facilities, moreover the condition of patient became very serious and severe due to act and conduct of attendant of patient, who refused to get her treated according to medical advice given by Respondent-1 and forced for discharge.  There was no negligence on the part of the Respondent-1 while giving the treatment as alleged.  The complainants never proved by leading the medical/expert opinion by some equally competent doctor to prove their version.  Respondent-1 contended that it relies upon paras 14 to 16 of the judgment dated 21.07.2017.

8.3     OP-2/Insurance Company contended that the petitioners/ complainants filed complaint before the District Forum alleging deficiency of service and negligence on the part of Respondent-1 and claimed compensation of Rs.18.00 lakhs along with medical expenses of Rs.1.00 lakh.  The Respondent-1 filed detailed reply to the complaint and it was pleaded that there was no negligence of the respondent doctor and it was further pleaded that it is a necessary legal requirement to send the complainant for an expert opinion from the Medical Board.  It was also the case of the respondent doctor that in the report, the treating doctor of Sukhda Multispecialty hospital, nowhere stated that respondent-1 was negligent in treating the patient or line of treatment given by the respondent-1 was wrong.  There is no iota of evidence to prove that the alleged complication arrived due to the treatment given by respondent-1 or due to the negligent treatment.  The contents of the complaint were denied.  It is further contended that the Respondent-1 was insured under the professional indemnity Doctor policy with United India Insurance Co. Ltd. for the period 04.09.2013 to 03.09.2014.  The Insurance Company was impleaded and they filed their reply to the complaint pleading that the allegations leveled against the respondent doctor are false, frivolous and are not based upon the report of expert committee.  It is also contended that as per law, laid down by the Hon’ble Apex Court and in absence of report of expert committee merely on the assumption and presumption, allegations of the complainant, an inference cannot be drawn about the deficiency and negligence on the part of the respondent doctor, who did his best for attending and treating the patient and until and unless deficiency professional negligence is established on the part of respondent doctor, doctor cannot be held liable, hence, the company cannot be burdened with any liability to indemnify the doctor.  It is also contended that with regard to the liability of the respondent, it was pleaded that coverage given to respondent doctor is governed by the policy terms and conditions with limited liability to the extent of Rs.5.00 lakhs for any one accident in a year that also only in case where there is negligence, omission on the part of doctor is proved.  It is further contended that the petitioners have not been able to make out any case of interference with the order of the State Commission.  The State Commission has given detailed reasoned finding that the respondent doctor was not negligent after scrutiny of the medical documents and evidence filed by the parties.  The Respondent/Insurance Company supports the order of the State Commission.  The District Forum has not given any reasons for imposing liability on the Respondent/Insurance Company.  The perusal of the order of District Forum show that after holding Respondent-1 liable, the District Forum, without giving any reasons, has stated that both the OPs are liable to comply with the order as directed jointly and severally.  The District Forum failed to note that although the Respondent/Insurance Company had admitted the insurance policy but had categorically stated that it would be governed by the policy terms and conditions and further that the liability of the insurance company is limited to the extent of Rs.5.00 lakhs.  The District Forum failed to note that no allegations were made by the complainants in the complaint against the Respondent Insurance Company and as such no relief could have been allowed against the Respondent Insurance Company.  Since there was no privity of contract between the complainant and the Insurance Company, there cannot be any deficiency of service on the part of Respondent/Insurance Company Further, the District Forum had not examined as to whether the terms and conditions of the policy were complied with before imposing the liability on them.  In any case, the District Forum had no jurisdiction to go into this question in the complaint filed, for medical negligence against respondent doctor.  It is contended that the Respondent Insurance Company can only be held liable, once the doctor is held negligent and liable to pay the compensation and in that case also the maximum liability of the Respondent/Insurance Company would be Rs.5.00 lakhs as provided under the policy.

9.       We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  The challenge is to order dated 21.07.2017 of the State Commission under which three appeals were dealt together, appeal no. 285 of 2016 having been filed by the legal heirs of the deceased for enhancement of compensation from the one awarded by the District Forum, and appeal 367 of 2016 and 332 of 2016 having been filed by respondent 1 and respondent 2 respectively challenging the order dated 02.03.2016 of the District Forum. Appeal 285 of 2016 filed by petitioners herein was dismissed, appeals filed by the Doctor and the Insurance Company were allowed, order of the District Forum was set aside and complaint was dismissed. Petitioner has filed the above said three revision petitions challenging the orders of the State Commission in the said three appeals.

10. Respondent 1 along with their brief of written arguments filed copies of the relevant medical records relating to the patient (wife of petitioner 1). Production of these documents at the stage of revision petition by the respondent-1 was strongly objected by the counsel for the petitioner stating that these were never produced by the respondent 1 before the District Forum or before the State Commission hence at this stage no new documents can be allowed to be produced and relied upon. He also drew our attention to the orders of the District Forum which clearly records that the respondent-1 Doctor did not produce these medical records of the patient. It is admitted by the learned counsel for respondent 1 that these documents were not placed on record either before the District Forum or before the State Commission. No specific reasons have been given for not placing these records before the fora below.

11. Perusal of these records show that the patient was admitted in the hospital of petitioner 1 on 30.12.2013 at 1.40 p.m., and was attended by the petitioner-1 Doctor himself as claimed by the learned counsel, stating that initials on this document are that of Dr. Naresh Mittal. Subsequent to this the next attendance of the patient is seen at 8.00 p.m. on 30.12.2018. The progress sheet dated 31.12.2013 does not show any timing when the patient was attended by any Doctor. The progress sheet dated 01.01.2014 shows the timing as 10.00 a.m. followed by 6:30 p.m. and 8.30 p.m. and finally the referral to the other institution at 10.25 p.m. Treatments record also shows the monitoring of parameters like temperature, BP etc. by the para medical staff of the hospital.

12. A perusal of the lab report document of Verma Pathology Laboratory  shows that it is on a letter head which shows the name of the hospital of petitioner 1 i.e. Mittal Hospital also, mentioning Verma Pathology Laboratory as extension branch. During the hearing, the learned counsel for petitioner 1 fairly admits that possibly both Mittal Hospital and Verma Pathology Laboratory are associate concerns. Learned counsel for respondent 1 has also drawn our attention to the medical literature and contended that as per this medical literature the threshold for prophylactic platelet transfusion is 10,000/μl and not even 18,000/ μl.

13. Learned counsel for Insurance Company contended that they cannot be straightaway held liable for the medical negligence by the Doctor/hospital and District Forum went wrong in making them liable jointly with respondent 1, Doctor. Doctor has a Professional Indemnity Policy with them and if they are held responsible for any medical negligence, they have to file a claim under the policy and the same would be processed strictly in accordance with the terms and conditions of this policy.

14.     As regards contentions of OP-2 Insurance Company,  District Forum has held both OP-1 (Doctor) and OP-2 (Insurance Company) liable jointly and severally, stating further that liability of OP-2 (Insurance Company) is limited to the sum insured under the policy issued by Insurance Company to the hospital of OP doctor.  In this regard, we have considered the contentions of OP-2 (Insurance Company that Doctor has a Professional Indemnity Policy with them and if they are held responsible for any medical negligence, they have to file a claim under the policy and the same would be processed strictly in accordance with the terms and conditions of this policy and are in agreement with the same.  It is to be noted that the Complainants in their complaint have not made OP-2 Insurance Company as a party.  However, it is District Forum itself who had impleaded the Insurance Company as party to proceedings before it. Hence, if OP-1 doctor hold a valid policy and is held liable for negligence by competent Court/Commission, it is for OP-1 to formally lodge a claim with OP-2 Insurance Company by observing the due process and submitting requisite documents, whereupon it is incumbent upon OP-2 Insurance Company to consider such claim on merits in accordance with the terms and conditions of policy held by OP-1 and if found eligible, disburse the same. Hence, District Forum went wrong in holding OP-2 Insurance Company straightaway liable along with OP-1. To the extent, the order of District Forum needs modification.

15.     Coming to medical negligence/deficiency in service on the part of OP-1, District Forum has extensively considered the evidence before it and came to a finding of negligence and deficiency in service on the part of OP-1 doctor.  Extract of relevant paras of order of District Forum is given below:

7. The first main question to be decided by this Forum is, whether there is any deficiency or negligence in treating the patient Smt. Suman by the OP doctor or not? In this case it is admitted fact and proved on record that at the time of admission i.e. on 30.12.2013 total platelet count of the patient was 94000 against the normal range of 150000-400000. On 31.12.2013 no blood test has been got conducted by the OP doctor. Thereafter, on 1.1.2014 platelet count of the patient have fallen to 18000 against the normal range of 150000-400000. It is also proved on record that OP doctor did not take any measure for increasing the platelet count since the very beginning. In view of written version of OP doctor there was no complaint of fever or difficulty in breathing, rashes, redness over body from the date of admission till discharge and further there was no respiratory disorder from the day of admission till 1.1.14 at 8.30 pm. Further as per the version of the OP doctor there was no urine problem and ARDS (acute respiratory disorder). Further according to OP doctor it is wrong that patient having 18000 counts falls in very serious position more particularly when there was no symptom of body including redness rashes etc. Further according to OP doctor there was no need to provide the facilities like oxygen and ventilator etc. according to his professional knowledge and as per his clinical observation. He has further replied that platelets increase only when infection (bacterial) remains not there in body after the antibiotic starts its effect. It is further replied that only on 1.1.14 at 8.30 p.m. patient Suman was having difficulty in breathing but attendants of patients refused to keep her on oxygen and ventilator and asked for discharge for taking her to some higher centre. It is admitted that complainant no. 1 husband of Smt. Suman has been sent for bringing the platelets from Dera Sacha Sauda, however in order to avoid any conflict in between patient and doctor, OP doctor made a call to him come back to the hospital instead of bringing the platelets from the blood bank. As per the version of the OP doctor he given best treatment to the patient and there was no negligence or deficiency in treating the patient on his part. Other preliminary objections taken by both the OPs in their versions have not been seriously pressed during the arguments.

8. From the above version of the OP doctor it has been clearly proved on the record that platelet count of patient Smt. Suman was less against the normal range since the day of her admission in the OP’s hospital and within the period of three days i.e. on 1.1.2014 it has been fallen to 18000 against the normal range of 150000-400000. Admittedly, OP doctor failed to got conducted any blood test on 31.12.2013. We are of the considered view that in these days, even a layman knows that fallen of platelet count as in the case of Smt. Suman was very serious situation and as discussed thoroughly during the course of the arguments she should be given platelets from very beginning. To prove the deficiency and negligence in treatment of Smt. Suman by the OP doctor complainant placed various documents on the record i.e. from Ex. C1 to Ex. C26 as detailed above. Whereas OP no. 1 has produced only his own swearing affidavit and some pages of principles of internal medicine. Affidavit of the OP doctor is only repetition of his written version. He failed to produce any other treatment record of Smt. Suman to show that he has given proper and best treatment to her. OP doctor also failed to produce affidavit of any employee of his hospital to deny the fact that he has attended the patient as and when it was required and given best treatment and allegations of not attending the patient are false. On the other hand from the various lab reports and other documents on record, it is clearly established on record that patient Suman has not been given any treatment to increase her platelet count which in our view is gross deficiency and negligence on the part of the OP doctor. Further from Ex. C24 it is clear that she was admitted in Sukhda Multispeciality Hospital Hisar in very serious and emergency condition with severe respiratory disorders and cyanonis and bleeding PV and drowsiness. She was immediately admitted in ICU and put on ventilator support. It is also established on record through this document that she was suffering from dengu, malaria positive and acute respiratory disorder. On the other hand from the version and other document produced by the OP doctor, it is clearly established that she has not been given any treatment for the above said disease which amounts to deficiency in service and negligence on the part of the OP doctor. As held by the Hon'ble National Commission in the case of Sir Dorabji Tata Trust Aided Hospital Vs. Rajeswari, cited as 2014(2) CLT 475, delay in diagnose and not providing the Proper facilities amounts to medical negligence. OP No. produced only affidavit of Divisional Manager of the company in support of their written version. It is pertinent to mention that OP doctor instead of admitting his negligence, replied that "it was a negligence on the part of complainant because they have obtained the treatment from the answering respondent". Consideration for giving the treatment to the patient is also admitted. As such, OP doctor provided his hospital services to Smt. Suman for consideration. In our view, he is liable to be held guilty for deficient and negligent services. Accordingly, we held the OP doctor guilty for deficient and negligent services under the provisions of Section 2(1)(g) and 2(I)(o) of the Consumer Protection Act.

9. Now, coming to quantum of compensation and reliefs to be given to the complainants, we are of the confirmed view that untimely death of Smt. Suman may be avoided if OP doctor provided her proper treatment and taken the seriousness of less platelets count from the very beginning i.e. from the date when lab test has declared less platelet count. But OP doctor remained negligent till the end i.e. uptil the day of her discharge from the hospital when she was having only 18000 platelet count with acute respiratory problem. In other words, it can be said that when OP doctor outed the patient from his hospital she was at the death bed. Loss suffered by the complainants due to death of Smt. Suman cannot be compensated in terms of money, however, considering the age of diseased Smt. Suman and in view of case law laid down by the Hon'ble Supreme Court cited as II(2001) ACC 316 (SC) titled Lata Wadhwa & Ors. Vs. State of Bihar & Ors., taking into consideration multifarious services rendered by housewives for managing entire family, on modest estimation, should be Rs.3000/- per month and Rs.36000/- per annum for the age groups of 34 to 59 years. Under the settled principles of multiplication for calculation of amount of compensation this case comes under the multiplier of 15. As such amount of compensation comes to Rs.5,40,000/-. Accordingly, under the provisions of Section 14(1)(d) of the Act, OPs are ordered to pay sum of Rs.5,40,000/- to the complainants within one month from today, 17 failing which the complainants shall be entitled for the relief of interest @ 9% p.a. from the date of institution of the complaint i.e. 25.6.2014 till realization. Both the OPs are liable to comply the order as directed above jointly and severally. However, liability of OP no.2 is limited to the sum insured under the policy issued by the insurance company to the hospital of the OP doctor. OPs are also directed to pay Rs.11000/- as litigation charges. Amount of compensation, litigation expenses and interest accrued if any shall be divided amongst all the five complainants in equal share. However, amount of minor complainants shall be kept under fixed deposit scheme of any nationalized bank till attaining the age of majority. Copy of the order be supplied to the parties free of cost and file be consigned to record.”

16.     State Commission in appeals filed by OP-1 and OP-2, disagreeing with the findings of District Forum with respect to negligence and deficiency in service on the part of OP-1 doctor, set aside the orders of District Forum and dismissed the complaint.  Extract of relevant paras of order of State Commission is given below:

16. Smt. Suman remained in the hospital of opposite party No.1 from December 30th, 2013 up to January 01st, 2014 and she died on January 02nd, 2014 at 10:30 P.M. after she was shifted to Sukhda Multi Specialty Hospital, Hisar where she was being kept on ventilator due to breathing problem. In fact, the attending doctors were in a better position to understand as to at what stage the patient should have been kept on ventilator and was in need of oxygen due to breathing problem. It appears that till the patient remained in the hospital of the opposite party No.1, the breathing problem was not so serious which needed the patient to be kept on ventilator. Ventilator facility was available in the hospital and moreover the cause of death of the patient was not only breathing problem and that the timely oxygen was not provided to the patient in the hospital of the opposite party No.1 as she remained alive for more than a period of 24 hours after she was discharged from the hospital of the opposite party No.1.

17. At the time of giving findings in this case, we are also required to make our mind clear regarding ailment of dengue. In fact, dengue is a very serious ailment and chances of casualty due to dengue fever are more than ordinary fever, malaria and so many other diseases. As and when there is news of spreading dengue fever in a particular area, Health Department and State Government take it very seriously and treatment is given to dengue fever patients on war footing. Frankly speaking, sometimes it cannot be possible to save life of dengue patient despite all possible efforts, made by the doctor. In most of the cases survival of the patient of dengue does not depend upon the medicines and treatment. Dengue patients are found to be more hopeful for increase of platelets count on the basis of prescribed diet, fruits and liquid. Increase in the level of platelets count in most of the dengue fever cases starts merely due to precautions, diet chart and consumption of liquid and fruits etc. Sometimes in dengue fever cases prevention is better than cure. A doctor certainly cannot give 100% guarantee to save the life of a dengue patient. In this case, as per pathological report dated December 30th, 2013, the level of platelets count was 94000 and certainly at that time the condition of the patient was not so serious. We feel due to these reasons also the opposite party No.1 did not think it proper to get blood test and other tests conducted on next day i.e. December 31st, 2013. It is also nowhere provided and even not advisable that blood test and other tests regarding dengue disease should be done daily.

18. It appears that the opposite party No.1 had taken decision to get blood test and other tests on January 01^st, 2014 instead of December 31^st, 2013 in good faith considering that the patient was not so serious as the level of platelets, count was 94000 on December 30th, 2013. In our view, it cannot be considered as a case of carelessness and negligence on the part of opposite party No. 1. A doctor has to take some decisions considering condition and seriousness of each and every patient. Sometimes, there may be mistake in the decision of a doctor also. A doctor can be expected to provide medicines and give treatment as per his ability and each and every decision of a doctor certainly cannot be correct. We cannot overlook this aspect also that chances of survival of a dengue patient are not so much. Keeping in mind the entire pleadings and evidence on the file, we feel that it does not appear to be a case of any act of negligence and deficiency, in service, on the part of opposite party No.1 at the time of treatment of patient Suman (deceased). It appears the complainants started blaming the opposite party No.1 because he could not save the life of patient Suman who was admitted in his hospital for treatment. The casualty rate, of dengue patients is also very high and in most of the cases it becomes very difficult to save life of a dengue patient.

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22. During the course of arguments, learned counsel for the opposite party No.1-Dr. Naresh, Mittal argued that the complainant has failed to prove any act of negligence and carelessness on the part of opposite party No.1 or any other doctor or official of the hospital. Treatment was given to the patient by Dr. Naresh Mittal as per his wisdom and long experience. Merely because Dr. Naresh Mittal, could not save the life of Suman, findings cannot be given that all it happened due to acts of carelessness and negligence on the part of Dr. Naresh Mittal. It also will not be justified and advisable to give findings against Dr. Naresh Mittal on the basis of statement of the complainant and few other witnesses in the shape of affidavits and more particularly, when no expert opinion has been obtained in connection with acts of carelessness and negligence on the part of opposite party No.1. Learned counsel for the opposite party No.1 has argued that sometimes at the time of treatment of the patient, the patients have to face un-expected problems.

23. During the course of arguments, learned counsel for the complainants also argued that Dr. Naresh Mittal-Opposite Party No.1 should had transfused platelets in the body of patient Suman as and when she was brought to the hospital as total platelets count on that day was 94000 and more particularly on next day December 31st, 2013 after conducting blood test and other necessary tests. In case blood test and other necessary tests would have been conducted. on December 31st 2013, certainly the opposite party No.1 would have taken decision to transfuse platelets in the body of the patient. Learned counsel for the complainants has argued that it is a clear case of medical negligence on the part of the Dr. Naresh Mittal-opposite party No.1. In support of his this contention, learned counsel for the complainants placed his reliance upon a decision of the Hon'ble National Commission in case law St. Stephens Hospital versus Roshani Devi & Ors. 2013(4) C.P.J. 74.

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29. There is no doubt of any type in this regard that medical profession is a noble profession. People involved in the medical profession, more particularly the doctors command respect in our Society. At the same time, expectations of the public persons are also much more from the doctors than the other institutions and sections of the Society. In fact, a doctor cannot give complete assurance and guarantee to save life of a patient. Certainly for a patient process of treatment is a question of life and death. In this way, a doctor is required to be more and more careful at the time of treatment of a patient. A little negligence on the part of a doctor can make life of a patient hell. A doctor can help a patient by providing him best possible medicines/treatment. Sometimes, mistake may also be possible on the part of a doctor also at the time of treatment. After all, a doctor is also a human being. Working of a doctor cannot be expected like a machine or a computer.

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 31. In our view Dr. Naresh Mittal-Opposite Party No.1 provided best possible treatment to the patient but unfortunately the life of patient Suman could not be saved and she breathed her last after she was treated by the opposite party No.1 as well as at Sukhda Hospital, Hisar. The opposite party No.1 also had asked the complainant No.1 to purchase platelets from Dera Sacha Sauda, Sirsa to transfuse the same in the body of the patient but the condition of the patient had become very critical and the complainant No.1-Ranbir Singh and his other relatives took decision to shift the patient to some other hospital. Resultantly, findings are given that cause of death of Suman is not any act of negligence on the part of the opposite party No.1. We feel the District Forum has committed an error while giving findings that Suman breathed her last due to negligence of Dr. Naresh Mittal-Opposite Party No.1.

 32. Resultantly, the appeals Nos.332 and 367 of 2016 filed by Dr. Naresh Mittal-Opposite Party No.1 and United India Insurance Company Limited-Opposite Party No.2 are allowed, the impugned order dated March 2nd, 2016 passed by the District Forum is held illegal and is set aside. The complaint filed by complainants stands dismissed and consequently, appeal No. 285 of 2016 filed by complainants stands dismissed.”

17.     We are not in agreement with the observations/findings of the State Commission in the impugned order, some of which having been reproduced in the preceding paras.  We are of the considered view that District Forum, after considering the entire facts and circumstances of the case and evidence before it, rightly came to the findings of negligence and deficiency in service on the part of OP-1 doctor and we are in agreement with those observations/findings of District Forum.  State Commission went wrong in reversing a well-reasoned order with respect to deficiency in service on the part of OP-1 doctor, hence order of the State Commission cannot be sustained.  Although there is no valid reasoning were given by OP-1 for not placing on record the medical treatment record of the deceased before the District Forum and State Commission, however, even if we place reliance of these records, it shows lack of proper care and attention to the deceased by the OP-1 doctor and supports the findings of negligence and deficiency in service on the part of OP-1 doctor as alleged by the Complainant and as held by the District Forum.  The OP-1 doctor ought to have done regular tests with more frequency to check and monitor platelet count and started giving the platelet on observing its falling trend from 94000 to 18000.  Even the decision of OP-1 doctor to recall the complainant back when he has gone to arrange platelets from Dera Sacha Sauda, and then discharging them for other hospital, does not seem to be appropriate.  OP-1 doctor in such serious condition of the patient, instead of attending to her, decided to run away from his responsibility and discharged and referred the patient to another hospital.  The medical records, placed on record at RP stage by OP-1 doctor himself, speak for itself, which has been briefly stated in para 11 & 12.  The patient ought to have been attended to and monitored much more closely.  Early provision of platelets and timely provision of oxygen and ventilator could have helped. 

18.     Hence, keeping in view the entire facts and circumstances of the case, and endorsing the observations and findings of District Forum with respect to negligence and deficiency in service on the part of OP-1 doctor, we hold that OP-1 doctor (Respondent-1 herein) was guilty of negligence and deficiency in service.  However, in view of our observations in para 14, we are not in agreement with the findings of District Forum with respect to liability of OP-2 Insurance Company at the state of Consumer Complaint by complainant against the doctor.  Accordingly, we set aside the order of State Commission in FA No. 367 of 2016 filed by OP-1 doctor/Respondent-1 herein.  However, we find no reasons to enhance the compensation beyond what has been awarded by the District Forum, subject to entire liability of paying compensation to be fixed on OP-1 doctor only.  Accordingly, we allow Revision Petition No. 3942 of 2017 only and set aside the order of State Commission in FA/367/2016.  RP No. 3822/2017 filed by Complainants for enhancement of compensation is dismissed.  Similarly RP 3941/2017 filed against order of State Commission in FA/332/2016 is also dismissed in view of our observation that at this stage OP-2 Insurance Company is not liable.  Accordingly, order of District Forum dated 02.03.2016 in CC/85/2014 is modified to the extent that entire liability shall be borne by OP-1 doctor/Respondent-1 herein, who shall implement the order of District Forum within one month from today.

19.     The pending IAs in both the cases, if any, also stand disposed off.