Kundan Kumar Kumai

This is an Appeal under section 15 of the Consumer Protection Act, 1986 preferred against the judgement and order dated 6/11/2019 passed by the Ld. DCDRF, Siliguri in CC No. 54/S/19.

Brief facts of the Appellant’s Case are that, the deceased being the husband of the Appellant and a Private Security Guard by profession had also been looking after the commercial vehicle, plying in the name of the father of the deceased, had on 17/08/2018 at around 10 AM, complained of stomach pain with tendency of vomiting, had been taken to the Respondent/Nursing Home at around 12:30 PM in the outdoor patient ward. After waiting for about half an hour, the doctor attended the deceased, had directed the patient to be admitted and the patient party had been asked to deposit Rs.10000/-, which the mother of the deceased had deposited but had failed to preserve the receipt after hearing about the demise of the deceased. Prior to that the deceased had no symptoms about any illness.

In the hospital bed the nurses had administered 6 types of tablets and after the pain increased the patient party had asked the nurses to call the attending doctor, but the nurses had paid no heed and scolded the patient to keep quiet and to lie in the bed. The patient complained of the breathing problem to the attending nurses, who procured and fixed a saline bottle and one oxygen and also injected some medicines to the saline bottle. The nurses were again called and then they provided a nebulizer under the instruction of the attending doctor and all of a sudden, a loud sound from the nebulizer could be heard at around 5 PM and the deceased/patient suddenly raised his head from the bed upwards, as his breath stopped and the deceased fell on the bed and the patient party, felt that the deceased had expired and the same was also confirmed when the nurse stated to the attending doctor that the patient was no more.

The patient party raised hue and cry in the hospital premises but the attending doctor did not visit the deceased patient and the nurse arrived and told the patient party to arrange for money, to deposit at the nursing home cash counter, as the deceased patient needed to be transferred to the CCU/ICU.

As the patient party believed that the deceased had already expired at around 5 PM, the friends, guardians and relatives had started chaos, regarding the negligence of the attending doctor and the nurses and also against the nursing home authority and the matter was reported to Siliguri Police Station where the same was diarized as GD entry 953/2019 dated 17/8/2018.

The Appellant’s allegations were mainly against the attending doctor who failed to execute his duties as the dose of medicines given orally or intravenous were overdose and there was wrong selection of medicines and improper care by the attending nurses, accounted for the death of the deceased. The attending doctor treated the deceased patient on a symptomatic basis and the medicines were based on his personal idea. The deceased patient had been given oral medicine and without giving sufficient time, usage of saline and intravenous medicines, had caused multiple organ failure. It is also stated that during the pendency of the proceeding an expert could be prayed for appointment to give proper guidelines, regarding the treatment procedure. Request for the bed head ticket/chart of the deceased patient being hospital registration no.154616 dated 17/08/2018, had been made along with all the treatment details, medicinal details including pathological report but the same had not been given. A legal notice had also been issued to the Respondent no.2 as well as Respondent no.1. Hence finding no alternative the instant complaint was filed before the Ld. Lower Forum, Siliguri with necessary prayers. Hence this Case.

But on the date of admission vide Order No.4, the Ld. Lower Forum below had not allowed the admission on the ground that the Appellant’s Case was contradicted by the post-mortem report and without challenging the post-mortem report itself the Appellant’s Case for appointment of medical expert, appeared to be a paradox.

Being aggrieved by the impugned Order passed by the Ld. Lower Forum, Siliguri the Appellant preferred this instant Appeal, that the Ld. Lower Forum below had erred in law and facts while passing the impugned Order.

                                                                           Decisions with reasons

Ld. Advocate for the Appellant at the time of final hearing has relied on the judgements passed in Tarun Thakore Vs. Dr. Noshir M Shroff, by the Hon’ble NCDRC in OP no.215/2000 dated 24/9/2022, in post-graduate Institute of Medical Education & Research, Cahndigarh Vs. Jaspal Singh & Ors. reported in (2009) 7 SCC 330, in Dr. Laxman Balkrishna Joshi & Anr. reported in AIR 1969 SC 128, in A S Mittal Vs. State of U.P. reported in AIR 1989 SC 1570 in Poonam Verma Vs. Ashwin Patel & Ors. reported in (1996) 4 SCC 322 in Smt. Rekha Gupta Vs. Bombay Hospital Trust & Anr. reported in 2003 (2) CP 160 (NCDRC) in P. B. Deshai Vs. State of Maharashtra & Ors. (2013) 15 SCC 481, in R. K. Nolini Devi Vs. Dr. Sharat Kumar & Ors., in V. Krishnan Rao Vs. Nikhil Super Speciality Hospital & Anr. in Civil Appeal No.2641/2010, in Sarwat Ali Khan Vs. Professor R. Boggy decided by the Hon’ble NCDRC on 18/7/2007 and has submitted that the above judgements support his Case and the Ld. DCDRF, Siliguri had erred while dismissing the Case at the admission stage itself. He then prayed for setting aside the impugned order.

Ld. Advocate for the Respondents on the other hand, has countered the above by relying in the judgements passed by the Hon’ble Supreme Court in Indian Medical Association Vs. V. P. Shantha, reported in (1995) 6 SCC 657 in Martin F D’Souza Vs. Md. Ishfaq reported in (2009) 3 SCC 1 in Jacob Mathews Vs. State of Punjab reported in (2005) 6 SCC 1 in Ins. Malhotra (Ms) Vs. Dr. A. Kriplani & Ors. reported in 2009 (4) SCC 705, in State of Punjab Vs. Shiv Ram & Ors. reported in AIR 2005 SC 3280 and submitted that the no error was caused by passing the impugned judgement.

The facts as revealed above, indicate that the death of the deceased was caused while the deceased had been taken to the ODP ward of the Respondent/Nursing Home, where he had been administered some medicines and treatment. Appellant’s Case is that the deceased had been negligently treated, during such period, resulting in his death. But in the impugned Order the Ld. Members of the DCDRF, Siliguri have opined that as the death was a natural death, as revealed from the P.M. report and hence the admission of the Case, had been denied. But in this regard, it can be stated that the allegation is of negligence and when the Appellant was keen to appoint an expert to get to the truth, it was premature on the part of the Ld. Forum below to deny the opportunity, to the Appellant to establish their Case, as the P.M. report would not be indicative, of any negligence, had it been caused. Under the circumstance, the impugned Order cannot be sustained and needs to be set aside.

As a result, the instant Appeal succeeds.

                                                                                It is therefore

                                                                                ORDERED

That the Instant Appeal be and the same is allowed on contest, but without cost.

The impugned Order is therefore set aside.

Copy of the Order be sent to the Parties free of cost.

Copy of the Order be sent to the Ld. DCDRF, Siliguri for necessary information.