The whole matrix of the complaint case alleging deficiency in service of the O.Ps., is herein under.

            That Soma Das aged 25 years died in a delivery case on 18.1.2013 due to wrong treatment and negligent of O.P.  The Soma Das since deceased was admitted in the Jeebandeep Seva Sadan Nursing Home at Kamarkundu under the care of Dr. Prasenjit Pal of that Nursing Home on 17.1.2013 at noon.  The patient was under his treatment since 6.6.2012. The petitioner deposited Rs.10,000/- to the O.Ps.  At 3.15 P.M. after operation by the O.P. No.1 a male child was born.  The patient was shifted to bed but there was profuse bleeding for which her condition was deteriorating very soon.  Saline and Oxygen was given to the patient, Soma Das but condition was not improved.  The complainant and others requested to the O.P. No.1 Doctor for taking proper steps for the patient Soma Das for deplorable physical condition.  On 18.1.2013 the patient was recommended for better treatment to NRS Hospital with the help of the vehicle No.WB 15B 4908.  It is also stated that no oxygen was given to the patient by the Doctor, O.P. No.1. The O.P. No.1 was present with Soma Das where she is carrying in the Kolkata in the said car.  The O.P. No.1 with the driver of ambulance went inside the hospital and came back after some time and started to return towards Singur along with the patient without any consent and opinion of the complainant.  It is also the case of the complainant that they were not allowed to go inside of the NRS hospital.  After reaching the Singur the O.P. No.1 Doctor stated that the patient was diet.

            It is alleged that the death of Soma Das died due to negligence act by the O.P. No.1, Doctor.  If doctor would have acted with proper care, such death might not been took place.  It is also stated that this O.P. No.1 issued death certificate.  It is further case that after that there was meeting in the nursing home in present of all members when O.P. No.1 stated that oxygen was not given to the patient in the ambulance and patient died at Daluigacha in Singur P.S. at the time of going to the NRS Hospital.  Afterwards the complainant instituted criminal case U/s.304 A IPC.  Accordingly, the new born baby and husband of the deceased suffered great loss economically, physical due to demise of the Soma Das about aged of 25.  Hence, this case claiming compensation 19,09,999/- plus litigation cost.

            O.P. No.2 has contested the case denying inter-alia all the material allegation and stated that there is no clear and definite complaint against this O.P., Nursing Home.

            The O.P. No.1 has contested the case by filing written version denying inter-alia all the material allegations of the complainant.  It is submitted by the O.P. No.1 that the patient Soma Das had a caesarian delivery at 3.15 P.M on 17.1.2013.  The patient and her male child were both are alright.  Thereafter normal post operative care and advice was provided to the patient.  On the same day at around 8.30 P.M the patient Soma Das experienced pain in her abdomen.  It was detected as a case of epigastric discomfort and patient was treated.  The patient was kept under supervision and required medicine was prescribed and administered.  At around 4 A.M. on 18.1.2013 the patient’s condition was deteriorated.  Then this O.P. No.1 Doctor referred the patient to any higher centre or any state medical facility. 

  The patient was taken to NRS Hospital for better treatment.  The doctor was present with the patient.  But at the time of admission of the patient at NRS Hospital the patient had no pulse beat, beat of the heart and did not have any other symptom of life.   It is also submitted that O.P. No.1 was sure that the patient was expired.  But the patient was examined by the emergency doctor. The emergency doctor also confirmed the death of the patient.   It is also O.P.’s case that if a patient brought death post mortem examination was to be held.  The patient party strongly denied to undertake Post Mortem Examination. It is also the case of the O.P. No.1 being emotionally attached to the patient party the O.P. No.1 Doctor issued death certificate in hurried manner.  After a few days as per request of the complainant a fresh death certificate was issued by this doctor.  As such the O.P. No.1 issued death certificate in two times.  It is also further case of O.P. No.1 that “the patient expired due to sudden cardiac arrest, due to suspected Amniotic Fluid Embolism.  Doctor also stated that it is a situation when the amniotic fluid enters into the vessel of the mothers which may or may not mix with the blood.  If does not mix with the blood it becomes a bubble or embolism and thus blocks the blood supply in the very small calibre vessels culminating into restricted blood supply to the vital organ.  This disease is very uncommon and nearly fatal.  It is difficult to diagnosis (Para-27 of the W.V.)”.

            The O.P. No1 treated the patient to his best ability and in accordance with the infrastructure available to him.  The answering O.P. is not guilty of neglect or not taking proper care or acting against the laws of the land.  Hence, this case.

            The complainant filed photocopies of voter identity card, death certificate of Soma Das, birth certificate of Samidh Das, antenatal card of Soma Das, prescription of Jeebondeep Seva Sadan Nursing Home, prescription of Dr. Prasenjit Pal, death certificate dated 10.5.2013, seizer list, FIR, photocopy of European Journal of General Medicine, evidence on affidavit, answer of the interrogatories and brief notes of argument.

            The O.Ps. also filed evidence on affidavit, interrogatories.  The O.Ps. on 12.12.2018 filed briefs notes of argument, additional written notes of argument,  certified copy of deposition of Tapas pal as PW2, a citation of Hon’ble National Commission, III (2007)CPJ 146 (NC) and other citation of Hon’ble Supreme Court vide No. AIR 2005 Supreme Court 3180.  On 13.12.2018 the O.P. No.1 doctor filed photocopies of seizure list and prescription dated 17.1.2013 without attested by the notaries.

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the Complainant is a consumer of the opposite party?

 2.    Whether the O.Ps. are liable for deficiency in service?

3.     Whether the complainant is entitled to get relief as prayed for?

DECISION WITH REASON

               All the three points are taken up together for the brevity and convenience of the discussion.

               The complainant, husband of the deceased, adduced evidence on oath.  Complainant stated that Soma Das since deceased aged 25 years was admitted in Jeebondeep Seva Sadan Nursing Home at Kamarkundu under the care of Dr. Prasenjit Pal.  The Soma Das since deceased was carrying and was under treatment of doctor O.P. No.1 from 6.6.2012.  On 17.1.2013 the Soma Das was admitted in the nursing of O.P. No.2, Jeebondeep Sava Sadan. On that date at 3.15 P.M. after operation by the O.P. No.1 a male child was born.  After giving birth of the child the condition of the patient became abnormal for huge bleeding and her physical condition was deteriorating quickly.  She was treated by doctor by giving saline, oxygen and injection.  The complainant requested the O.P. doctor for taking proper steps urgently to save the life of Soma Das since deceased.  But inspite of deteriorating condition the O.P. No.1 & 2 did not took the proper steps for sustaining life of deceased Soma Das.  On 18.1.2013 the doctor, O.P. No.1 referred the patient to NRS Hospital.  The doctor went to NRS Hospital with the Soma Das and other companion by arranging a vehicle No.WB15B 4908 along with mother-in-law i.e. mother of deceased and other two at 4 A.M.  The O.P. No.1 did not pay any oxygen to the patient.  The patient and the ambulance reached the NRS Hospital but Soma Das was not admitted and returned towards Singur along with patient.  During the course of journey the complainant was told by the O.P. No.1 doctor that patient died.  Thereafter, one meeting was held in the nursing home in presence of all wherein O.P. 1 declared that oxygen was not given to the patient in ambulance and death occurred at Daluigachia in Singur at the time of going to NRS Hospital.  It is also alleged that O.Ps. are trying to suppress something to safeguard themselves from the negligent act.  The incident was informed to the police and the police registered one case U/s.304 A IPC.  The complainant lost his wife.  Soma Das had one son of seven years and another new born i.e. Soma Das left the world keeping two child.  The complainant suffered very much economically and mentally along with physical pain and agony and helplessness due to the sad demise of Soma Das. Hence, the complainant prayed relief of the negligent act of the O.Ps. The complainant requested for compensation but they did not make any response.

 The O.P. No.1 has filed interrogatories containing 35 questions wherein the O.P. has made only suggestions.

Question No.1: What is your educational qualification?

Question No.2:  Do you have any special qualification with regard to medical science?

Question No.9: Do you have papers to show that Dr. Prasenjit Pal, the O.P. No.1 is a doctor or employee of O.P. No.2?

Question No.10: Do you have papers to show that Dr. Prasenjit Pal, the O.P. No.1 advised to get your wife Soma Das to be admitted in the nursing home on  17.1.2013?

Question No.13. Is not it that your wife firstly felt an Epigastic discomfort at around 8.30 P.M on 17.1.2013 ?

Question No.15. Do you have any documents to show that your wife started huge bleeding after being shifted to bed after the operation relating to birth of child on 17.1.2013?

The complainant answered the interrogatories.

Regarding question No.1, the complainant stated that he has no specific educational qualification.

With regard to question No.2, the complainant answered ‘No’.

Regarding question No.9, the complainant answered ‘Yes already submitted’.

Regarding question No.10 the complainant answered that ‘Yes’.

Regarding question No.13, the complainant answered ‘Do not know’.

Regarding question No.15, the complainant answered ‘does not arise as no such documents was given by the doctor, O.P. No.1’.

     But the said interrogatories i.e. cross examination the complainant has brought the fact that complainant is uneducated.  It is not possible for the complainant to state the qualification of doctors or anything rather complainant stated that the O.P. did not give any treatment sheet to the complainant.  Virtually the questions in which answer has been given by the complainant goes against the doctor who is an educated, prudent, knowledgeable medical expert and very much literate person who knows everything, every steps, every protocol of treatment.

    The complainant filed some documents. From the documents it transpires that Soma Das expired at Daluigachia in Singur on 18.1.2013. The certificate issued by the doctor shows that patient expired at 6.15 on 18.1.2013 “due to sudden cardiac arrest” “due to suspected amniotic fluid embolism” after caesarian section operation on 17.1.2013 at 3.30 A.M. (Annexure-10) and at that time doctor was present in the ambulance because doctor referred the patient to NRS Hospital and doctor was going to NRS Hospital with the patient. Accordingly, it is a doctor who is well known regarding the physical condition of the deceased Soma Das.  The complainant also filed one paper (Salishi Paper) written by some persons wherein the Doctor Prasenjit Pal was  also present.  This is a Xerox copy.  The original documents have not been filed for perusal by the court.  The complainant has filed seizure list which has been seized by the police in connection with the case instituted under U/S- 304A IPC.  In the said Salishi Paper, this documents shows, though Xerox copy, that oxygen was given in the hospital but during the tour oxygen was not given to the patient. Seizure list shows that police seized the prescription in the name of Soma Das of Dr.Prasenjit Pal and other certificate seized by the police.  In this way the complainant has brought the document to show that Soma Das was treated by the doctor during his prenatal period and after delivery of son under the care of the doctor O.P. No.1. The complainant also produced one antenatal prescription of O.P. No.1 to show that Soma Das was treated from 6.6.2012 i.e. during the period of carrying.

The complainant has also filed a prescription Xerox copy of O.P. No.1 in which it is stated post operation and ligation done on 17.1.2013 at 4 P.M. This Xerox copy shows that deceased Soma Das gave birth a male child at 3.15 P.M. weight 3 kg 250 gram.  Baby cried out after birth.  B.P. was 90/60. The doctor also advised injection for three days. It also transpires from this prescription dated 17.1.2013 at 4 P.M also shows that hemoglobin was 10.1 gm, group of blood-AB Negative, RBS 72 mg.  This prescription annexure-6 was appears to be signed by the doctor.  The complainant also filed Xerox copy (Annexure-9) by which the condition of the patient has been described and patient was referred to any general hospital. These papers are treatment sheet which have been issued from the bed head ticket. This treatment sheet filed by the complainant Xerox copy does not show any effective advise for a patient on which operation was done and Caesar and ligation was done with blood group AB-Negative.  The complainant being an illiterate person who would have occasion to preserve and collect those documents mainly treatment sheet from the O.P. nursing home.  The treatment sheet i.e. bed head ticket shall be preserved by the O.P. Nursing Home for record. i.e. record of treatment sheet shall be preserved by the O.P. No.2.

It is admitted that complainant was admitted in the nursing home.  The complainant was under the treatment of O.P. No.1 from 6.6.2012.  It is also admitted that complainant took admission on 17.1.2013 and she gave birth a child at 3.15 P.M.  on 17.1.2013.  The treatment sheet does not show what course of treatment was adopted on the Soma Das after given birth by caesarian method.  One thing is clear that patient was referred to another hospital on 18.1.2013.  The paper before us does not show any mention and any deteriorate condition of the patient on which LUCS and ligation was done.  There was no paper in record  that requisitions of blood was done or the prescription which was made at 4 PM on 17.1.2013 does not prescribe any requisition of blood (AB-Negative) or no record to justify that said nursing home has supplied the blood.  In this case the allegation of the complainant that there was profuse bleeding after operation and after giving birth of the child.  There is no reason to disbelieve the evidence of the complainant on this point that there was profuse bleeding and for that reason doctor also did not prescribe any appropriate medicine. 

               The complainant has brought the patient before the O.P. No.2 under care of O.P. No.1 with expectation that deceased Soma Das would deliver child and would return home in normal condition. The rest duties of liabilities was on the nursing home and doctor to conduct the operation precisely as per procedure of surgical operation taking all precaution of preventing deteriorating condition of the patient by taking help of medical technology and medicine.  It is also surfaced in the evidence that from admission to last phase of taking the patient from the nursing home to NRS Hospital i.e. from 3.15 P.M. on 17.1.2013 to 6.30 AM of 18.3.2017 during this period the patient was complete control of Dr. Prasenjit Pal in the nursing home of O.P. No.2, even after starting from the O.P. No.2 nursing home from going to NRS Hospital the doctor was present in the ambulance. Therefore, O.P. No.1 is the fittest person to narrate the all physical and biological condition of deceased Soma Das.

               Let us we come in the written version of the O.P. No.1 and evidence of O.P. No.1, documentary and orally.  It appears that complainant has tried to his level best to discharge his burden of proof.  Now the burden of proof shifts to O.P. No.1 & O.P. 2 in whose custody the patient Soma Das since deceased had been kept. The O.P. No.1 in his written version para-27 stated that the patient was died “due to sudden cardiac arrest” “due to suspect amniotic fluid embolism”.  It is a situation when the amniotic fluid enters into the vessels of the mother, which may or may not mix with the blood. If it does not mix with the blood it becomes a bubble or embolism and thus blocks the blood supply in the very small caliber vessels culminating into restricted blood supply to the vital organs.  This disease is very un-common and nearly fatal.  It is difficult to diagnosis. 

    But doctor is silent on this point which steps he took as a preventive measure of such amniotic fluid embolism.  The Dr., O.P. No.1 did not produce bed head ticket narrating the medicine given by him pre and after operation or blood was given to the patient to relief amniotic fluid embolism.  In our general view and as per supportive treatment protocol in this respect has been found in different medical faculty Dept. of Gynecology and Obstetrics Authorities is to add blood and add oxygen. The doctor did not show the treatment protocol by which can prove that patient was kept under continuous oxygen supply and after operation the patient was given blood.  In the oral evidence the doctor stated (Para-6) the above statement also.  But he did not show any paper regarding the procedure of treatment and prescription.  It is also appeared that from the case record and the statement of O.P. No.2 that there is no intensive care unit after initial stability.  Caesarian section should be instituted with maternal oxygenation up to an arterial oxygenation tension of more than 60mm Hg should be achieved by administering oxygen via a face mask to all awake patients and should be rest up to 100% oxygen and this oxygen should be supplied continuously. In the written version and in the evidence doctor kept mum in this respect, even the document kept in the hand of the complainant which has been filed before this Forum does not show that during operations blood was given or after operation blood was given and patient was kept  with oxygenation 100%.

 The doctor has duty to produce document to show the bed head tickets i.e. treatment sheet which he generally kept in a hospital or a nursing home as per rules.  The doctor has stated the circumstances that death of the patient Soma Das after delivery of child. The doctor stated he has been treating the delivery patient for 25 years. Accordingly it is expected that he must be aware of such kind of disease stated by him suspected amniotic fluid embolism and its prevention.  Doctor did not apply mind as per his evidence and written version on record to take steps of amniotic fluid embolism by taking the modern method in case of surgical operation.  The record failed to show that doctor took necessary steps for AB-Negative blood for the life of the patient.   When it is a case of LUCS and ligation after caesarian on 17.1.2013 there would have been arranged of blood and continuous oxygenation but record does not show that any attempt was taken for such oxygen and blood.  In the salishi paper written by many persons shows oxygen was given in the nursing home. Oxygen was kept in the nursing home but in the ambulance oxygen was not given to the patient.  That meeting was held on 23.1.2013 at 12 PM. 

               After hearing argument the doctor has filed two unattested paper stating treatment sheet of Soma Das dated 17.1.2013 and 18.1.2013 in Xerox copy but the original copy has not been filed before this Forum for inspection and scrutinization.  The probability of afterthought preparation of this record cannot be ruled out.  However, this documents does not show anything to favour the doctor to show that doctor took appropriate steps to remove sufferings of the deceased.  The Xerox copy shows that the patient was observed by doctor at 6 PM, 8.30 PM, 10 PM and 2 AM on 18.1.2013 and lastly 4 A.M.  This dated mainly 18.1.2013 and 4 AM has been shaded by yellow mark which reflects that patient was refereed any state medical college at 4 AM. Regarding care i.e. supplying oxygen and supplying blood there is no diagnosis of requirement by the patient’s body.  There is no diagnosis of the physical condition of the patient.  In fact what was the condition of the patient is not reflected on that Xerox copy.  It also appears from death certificate issued by this doctor, O.P. No.1.  Patient expired on 6.30 AM on 18.1.2013 while she was going to NRS Hospital accompanied by the O.P. No.1 doctor.

    It is to be noted patient was under active control of O.P. No.1 and patient was kept in O.P. No.2s nursing home and O.P. No.1 has written prescription at the interval of 2 hours i.e. 6 PM, 8.30 pm, 10 PM and 2 AM and inspite of that the doctor did not discuss worsen condition of the patient as the patient was complete control of O.P. No.1 and O.P. No.2.  It is the O.P. No.1 who can state the actual occurrence and supported by cogent documentary evidence.  There is no original document filed by the O.P. No.1 and document which filed Xerox copy and by firisti shows patient was good condition and all reports were within normal limit vide prescription dated 17.1.2013 pre-anesthetic check up.  After that operation was done and the patient was given in bed.  The doctor in his written version at para-27 stated that patient was died due to sudden cardiac arrests due to suspected amniotic fluid embolism.  When the doctor states that patient was suffered from amniotic fluid embolism he being experienced doctor his observation or suspicion cannot be discarded as the patient was total custody of this doctor.  Doctor ought to have applied method as per established procedure followed by medical science with precaution to protect the danger of life after delivery of child and proper arrangement ought to have been made by the O.P. No.1.  If we take the doctor version to be correct that he treated the patient at interval of two hours at fateful night of 17.1.2013 but he did not prescribe any method of amniotic fluid embolism when he found at 10 PM chest was clear and pressure was 110/70.  There was enough time of the doctor at least to discuss the matter with other senior expert doctor on that very night regarding the steps of amniotic fluid embolism.  Medical science shows when any patient attacked with amniotic fluid embolism his body will be pallor and whites.  There is no material that blood was again examined after operation and after operation patient was kept in blood supplying with 100% oxygenation.  At 4 AM when the patient was brought out form nursing home and was kept in the ambulance, her physical condition was beyond questionable.  The O.P. No.1 is an experienced doctor.  So he might have known the actual fact.  The doctor, O.P. 1 had suppressed whole material fact during his statement and evidence and even in times of argument he did not point out his steps.  Only stated he treated the patient with his best ability and accordance with the infrastructure available to him.  But the doctor did not disclose what was the infrastructure of the said nursing home.  From his evidence it transpires that doctor was averse to apply full mind or at least apply his anxious mind regarding treatment of the deceased.  Rather doctor drew out the patient from the nursing home to ambulance to carry the patient in deplorable condition to the NRS Hospital and that too without oxygen. This act of the doctor which he has shown in the Xerox copy of bed head ticket.  Rather shows the O.P. No.1 acted without due regard to the physical condition and disease of the deceased.

The patient was admitted in good condition and delivered a good child of good condition and the patient was kept in the custody of the O.P. No.1 in the nursing home of O.P. No.2.  Then all responsibilities to protect the life of the deceased were legally given to the O.P. No.1 & O.P. No.2 who was in good condition at 3.30 PM on 17.1.2013.  The patient was also non-diabetic and non-hypertension, no drug allergy.  In such circumstances, patient was also stable during operation but thereafter how the physical condition became shown worsen when doctor has written post operative advice. In the prescription dated 18.1.2013 at 10 PM &  2 AM the patient was under chest pain but the patient has not been examined by any pulmonologist or cardiac surgeon and no appreciation has been done regarding chest pain.  No diagnosis has been done regarding chest pain.  There is no document to show that concerned nursing home booked for any cardiologists or any pulmonologist for the treatment of the Soma Das who was in chest pain after operation.  It has been written by doctor that post operative period patient was suffering from epigastic.  The patient has not been examined by any gastroenterologist.   The O.P. No.2 nursing home did not book or call for any such doctor for consultation regarding the post operative condition of the deceased Soma Das. In expectation of better treatment the people goes to the hospital particularly for delivery. But the O.P. No.2 did not make any arrangement for giving proper treatment to the deceased during post operative period.  The O.P. No.1 also did not informed the party regarding such need of calling for doctors who is specialist in chest and specialist in gastric or pathologist.  The evidence on record which has been adduced by the O.P. No.1 shows that O.P. No.1 failed to discharge his duty to the patient which everyone expects from a doctor.  The O.P. No.2 also failed to prove that he has made adequate infrastructure to give such aid needed for the patient after post operative period.  For which the young women of 25 years age was compelled to leave the world due to omission of proper care as was needed by a post operative delivery patient as per the basic principle of Gynecology and Obstetrics. The new born baby became mother less.  The doctor failed to apply due diligent and care to the deceased wherein nursing home was also devoid of any attempt to attribute diligence to the patient party and the deceased.

         So, the O.P. No.1 & 2 miserably failed to prove their defense that there was no negligence on their part and they acted with due diligence to cure the patient for imparting good service. The patient was taken to NRS Hospital when doctor was present with the patient as per averment in Para-25 of the W.V.  Doctor, O.P. No.1 was sure that the patient had died. Instead of that the patient was examined by the doctor who present at the emergency ward of NRS Hospital.  The doctor was well known regarding the rule for post mortem examination of the patient.  In fact as per circumstances of this case and the patient was seen death by the hospital authority in the emergency department so the fact of this case deserved that post mortem report should be done to discover the cause of death.  Doctor set out for the NRS Hospital after 4 AM on 18.1.2013 and after reaching NRS Hospital doctor and patient returned to Singur but post mortem was not done.  This is another negligent on the part of the doctor who is expected to be well known of general norms of treatment and death when the deceased was in the custody of O.P. No.1. But the doctor did not take steps for conducting post mortem test on the body of the deceased Soma Das. The post mortem report would have held for correct determination the cause of death by another doctor who is generally investigate the duty of conducting post mortem.  By such omission it is presumed that O.P. No.1 tried to suppress his own guilt.  Without having any report the doctor stated in para-27 of W.V. that “the patient expired due to sudden cardiac arrest due suspected amniotic fluid embolism”.  It is matter of surprise what doctor took the steps for non-performance of post mortem and given this opinion stating cause of death, which cannot be done without post mortem.  Merely statement that the patient party was unwilling for post mortem cannot swallow at all. Because it is the duty of the hospital as well as duty of O.P. No.1, who was an experienced doctor to cause conduct of the Post Mortem report.  This is another omission on the part of the O.P. No.1 to discharge his duty as per law.  It has been stated herein before that to prevent such amniotic fluid embolism as per establish rule of treatment as present which is followed by doctors in Indian Hospital and Nursing Home recourse of blood and oxygen supply ought to be continued.  Non-performance of this duty entangled the doctor, O.P. No.1 with the breach of duty towards the patient which is contemplated by the established principles of law for considering deficiency of doctor. 

        In this case the duty of O.P. No.2 cannot be disregarded because the patient admitted in the O.P. No.2 nursing home under the care of O.P. No.1.  O.P. No.2 has also the duty to take all available care of the deceased in all respect and the right of duties starts from the point of admission of the patient in the nursing home as per their certificate and treatment sheet and that duty continued till the discharge of the patient. The O.P. No.2 also became indifference for not conducting the PM report.   No step to discharge the liability of O.P. No.2, are found in the entire record i.e. in the evidence and documents of this case.

           At the time of argument the O.P. No.1 has raised one question that the patient party did not deposit any fee of the Nursing Home.  So, the patient deceased Soma Das was not consumer as per argument of O.P. No.1.  In the complaint it has been written in pen writing that complainant deposited lump sum amount of Rs.10,000/- before the O.P. No.2.  It is common practice, no nursing home or any doctor would done any act or treatment without money.  No receipt of money is found in the record but it is settled principle of law that whether fees  is given or not, if the hospital or nursing home or doctor have imparted any treatment with or without fee is service.  In this respect the principle of law laid down in Indian Medical Council Vs. V.P. Shantha, [III(1995) CPJ1(SC)], the Supreme Court has held that “service rendered at a Government Hospital/ Health Centre/dispensary are rendered on payment of charges and also rendered free of charges to other persons availing such service would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the CPA, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such services.  Free service would also be service and the patient a consumer under the Act.”  So, this argument has no force.  More over in another citations in Devendra Kantilal Nayak Vs. Dr. Kalyani-ben Dhruva Shah [1996 (2) CPR 56], the patient died while delivering her baby in a Caesarean operation due to excessive bleeding.  It was observed that in spite of the fact the patient was under the regular care of the doctor, the relatives were not informed about the emergency, nor was any blood arranged to meet any contingency.  The doctor failed to be present for cross examination and as such his statements were treated as unprovoked and could not be read in evidence.  No independent, in involved expert was examined by the doctor.  There was a post mortem report regarding excessive abdominal bleeding.  Hence, it was held that corroborative evidences are sufficient to say that the patient died because of exsanguinations which with due care and advance precaution could have been prevented.  Compensation of Rs.2,35,000/- was granted.

         In this case in our hand post mortem was not conducted.  The doctor did not produce evidence regarding treatment on the patient after admission and particularly after delivery of child.  No adequate reliable evidence has been produce by the O.P. No.1 & O.P. No.2.

        In this case the O.P. No.2 has argued that there is no specific clear and definite allegation as against the O.P. No.2 nursing home.  So, the case dismissed against O.P. No.2 as O.P. No.2 is not concerned in any manner with the process of any medical treatment towards the wife of the complainant i.e. deceased Soma Das.  But it has been mentioned herein before that deceased Soma Das was admitted in the nursing home of O.P. No.2 on 17.1.2013 before 3.30 PM and she was there till 4.30 AM on 18.1.2013.  In the said nursing home she gave birth a male child on 17.1.2013, wherein the doctor O.P. No.1 was present and treated the patient till her last breath.  Accordingly, O.P. No.2 cannot be permitted to raise the plea that O.P. No.2 is in no way connection in the treatment of the deceased. There is catena of decisions of the Hon’ble Apex Court of the Land and Hon’ble National Commission of Land regarding liability of the hospital in the head vicarious liability of the hospital.  Ratio decedendi of the case mentioned later on would show that hospital or nursing home is liable for any negligency or treatment by the doctor in that hospital or nursing home.  In Bombay Hospital and Medical Research Centre vs. Sharifabai Ismail Syed and others [2008 CTJ 456(NCDRC0], the hospital where surgery is conducted or treatment is given is vicariously responsible for deficiency in service of its employees.  In another case, the State of Haryana Vs. Santa [2005 SCC 182], the Supreme Court held the Hospital liable vicariously for the negligence of its doctors.  In another case, in R.Gopinathan Vs. Eskeycee Medical Foundation, [1993 (1) CPR 456 (Maharashtra)], it was held that hospital was liable to the patient for the injury caused to him by the negligence of doctors, surgeons, nurses, anaesthetists and other members of the hospital in cause of their work.  In another re in Smt. Savita Gang Vs. The Director, National Heart Institute [2004 CTJ 1009 (SC) (CP)], it has been held that the hospital is liable for the treatment done by a visiting doctor.

         In Indian Medical Council Vs. V.P. Shantha, [III(1995) CPJ1(SC)], the Supreme Court has held that “service rendered at a Government Hospital/ Health Centre/dispensary are rendered on payment of charges and also rendered free of charges to other persons availing such service would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the CPA, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such services.  Free service would also be service and the patient a consumer under the Act.” So the argument of O.P. No.2 that O.P. No.2 is not liable in any way is not tenable in law and in fact.         The O.P. has also argued that there is no evidence of expert in the case.  The complainant did not take any steps to bring expert opinion.  In this connection it is argued by the complainant that the doctor in his evidence and in his written version para-27 himself has commented the disease by which the patient Soma Das died.  The doctor drew out his opinion without post mortem report.  As such the doctor has put himself in the shoe of an expert in pertaining evidence of real cause of death of deceased.  So, it has been mentioned herein before that although the doctor was aware of the reason he did not take sufficient care to prevent the patient from being deteriorated after delivery of child and that was continued as per record from 3.30 PM to 4 AM on 18.1.2013 when the doctor shows his non-deligency and sent the dying patient to the NRS Hospital by ambulance and he went with the patient.  So, the contention of expert evidence not production of which has been agitated by the O.P. is not sustainable due to expressing opinion of O.P. No.1 in the record.        More over man can tell a lie but circumstances cannot.  This is the basic principle of considering a case when there is no probable of coming direct evidence.  In this case in our hand the patient since deceased was complete control under O.P. No.1 & 2.  The patient came there for delivery.  The patient was under the treatment of O.P. No.1 since 6.6.2012.  The circumstances which have been created by the record obvious shows that O.P. No.1 did not impart adequate medical facility to the patient since deceased after post operation as per documents on record.  So, the argument of the O.P. that O.P. No.1 acted with due diligence failed to stand on legs.  It is the doctor who can tell actually what happened and at what time the patient took her last breath because the doctor was present with the deceased while they were going to the NRS Hospital and the patient died before reaching the hospital.  But the doctor did not disclose this fact to the patient party and he has been disclosed in the NRS Hospital and the time was as per doctor is 6.30 AM on 18.1.2013.  So, this circumstance, lead to establish the fact that knowing all facts and condition which lead to the death of the Soma Das, the doctor has suppressed the truth and actual fact.  This conduct of the O.P. doctor also devoid of any prays and goes against the O.P. No.1 doctor.  From any corner if discussion is made any one shall reach the conclusion that O.P. No.1 has not come with clean hand and left no stone un-turn to suppress the fact which leads to the death of the young woman.  Any stretch of imagination cannot absolve the O.P. No.1 from the responsibility and from the negligency of his treatment in imparting attempt to the need of the deceased.

          It is contented that the complainant claimed in aggregated Rs.20,14,900/- towards compensation and other reliefs.  It is argued that this Court has no pecuniary jurisdiction to pay order more than Rs.20,00,000/-. Accordingly as per prayer this court has no jurisdiction.  But the original written complaint shows that Rs.19,09,990/- for death of the complainant’s wife Soma Das along with litigation cost of Rs.15,000/- i.e. totaling Rs.19,24,990/-.  So, their contention is not tenable as per para-18 of the complaint petition.

     After a  deep circumspection and hearing both the parties over the material in record and facts of the case which are roaming in the record distinctly shows and proves that O.P. No.1 and O.P. No.2 are full of negligent and deficiency in service regarding treatment of Soma Das after post operative period till death.  Accordingly, the O.P. No.1 and 2 are jointly liable for deficiency in service to the consumer Soma Das, her husband and others under the C.P. Act.  As such they are found liable for committing negligent act in treatment of the deceased Soma Das causing unquestionable loss to the complainant and his son.  Now it is necessary to fixed up the quantum of compensation as per provision of Section-14(1) (d) of the C.P. Act.

          In the case of our hand the deceased was of aged 25 years when she was compelled to leave the world leaving new born baby and another child i.e. the Soma Das left the world keeping two sons, husbands and other relatives.  Though two sons have been deprived of mother’s care and dearness which every child expect from their mother.  The loss of mother cannot be compensated by money or by any other relief or anything.  The loving, caring and touch of mother is not purchasable matter in the world and this not commodity.  The two child have to weep for ever in this world.  None can give their protection which would have given by the mother to the said motherless child.  On the other hand the husband being deprived of the loving care of wife Soma Das.  The complainant has been suffering from mentally, physically and biologically.  Mental demand of a male person from his wife cannot be filled in by anything or any women which he got or expected to get from his demise wife.  The sad death of Soma Das deprived the complainant for ever from her loving touch.  The complainant has to live in loneliness of life.  No one and nothing in the world can compensate the loss of wife to a husband.  Accordingly, the quantum of compensation should be such and would be adequate that would suffice the two child for keeping any word for their protection during childhood and that amount should be commensurate with the income of the O.P. No.1 & 2.  For this huge amount of money is required.  O.P. No.1 & O.P. No.2 are responsible for causing such gigantic loss to the child and husband and O.P. No.1 & 2 must compensate that loss.  Accordingly, the quantum of maintenance will be adequate and sufficient for maintaining the two child and fulfilling the husband wanting.  After deliberation on this point   we are of opinion that if we ordered 19,00,000/- for payment to the complainant by the O.P. No.1 & 2 jointly then there shall be justice to the complainant and his child.  The complainant is also entitled to get Rs.50,000/- for litigation cost for coming and going to this

Forum from 25.9.2013 till this date of order.  We are also opinion that if this order for compensation is passed then the same will suffice the need of justice.  Hence, it is

ORDERED

that the case be same is allowed on contest against the O.P. No.1 & 2.

The O.P. No.1 & 2 are directed to pay total amount i.e. Rs.19,50,000/- in equal proportion i.e. O.P. No.1 will pay Rs.9,75,000/- and O.P. No.2 will pay Rs.9,75,000/- to the complainant and the complainant shall employ this amount for the welfare, livelihood and maintenance of the two sons till the attend of eighteen years.  The O.P. No.1 & 2 are further directed to issue A/c. payee cheque in the name of the complainant on the above stated amount respectively within 45 days from this date of order, failing which the complainant is at liberty to execute this order through this Forum. 

Let the copies of this order be supplied to the parties free of cost.