Karnataka

Bidar

CC/84/2015

Babu Rao S/o Praphu Rao Halembure Bagbal - Complainant(s)

Versus

Dr. Rajesh Kamtikar Govt. Hospital Bidar - Opp.Party(s)

P M Deshpande

27 Mar 2017

ORDER

  ::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                  C.C.No. 84/2015

 

                                                                                       Date of filing : 21/11/2015

 

                                                                                 Date of disposal : 27/03/2017

 

 

P R E S E N T:-             (1) Shri. Jagannath Prasad Udgata,

                                                                              B.A., LL.B.,

                                                                                                   President.

    

                                        (2) Shri. Shankrappa (Halipurgi),

                                                                               B.A.LL.B.,

                                                                                           Member.

                                   

                                   

COMPLAINANT/S:          Baburao, s/o Prabhurao Halembure,

                                              Age: 45 year, Occ: Labour,

                                              R/o Bagdal,Tq.&Dist.Bidar.

             

               

                                       (By Shri. P.M.Deshpande, Advocate )

 

 

                                                      VERSUS

 

OPPONENT/S   :-               1. Dr. Rajesh Kamtikar,

                                                Government Hospital, Bidar.

                                                   

                                              2. Dr. Nagraj Mitra,

                                                Government Hospital, Bidar.

                                                   

                                           3. Dr. Kshirsagar,

                                               Government Hospital, Bidar.

 

 

                                          4.  Principal Secretary,

                                               Health & Family Welfare,

                                               Dept. Of Medical Education, Vikas Soudha,

                                                   Bangalore.

 

     

                                      ( O.P.no.1 to 3 By Shri. Vilas Rao M.More, Adv.)

                                         ( O.P.no.4-Exparte )

 

                                                

::   J U D G M E N T  : :

 

By Shri. Jagannath Prasad Udgata, President.

 

 

                       This is a complaint filed by the above named complainant U/sec. 12 of C.P.Act, against O.Ps alleging deficiency in service by the O.P.s.  The subject of the case is as under.

 

2.                Complainant is native of village Bagdal,Tq.&Dist.Bidar and he being labourer belongs to financially  weaker section of the society.  The complainant claims that on 29/08/2015 he brought her daughter by name Sangeeta for abdominal pains of appendix to the Govt. hospital, Bidar.  Thereafter the respondent  Doctors team had admitted the daughter of the complainant as inpatient for ailment.  Further she was got operated on the same day by the team of respondents’ Doctors.  After operation, the O.Ps and nurses of the Govt. hospital were not taken care of the patient and all the O.Ps kept away from their duties and no medical services  was rendered.  It was a case of   negligence in medical skill and the patient  was compelled to stay in the hospital.  Later due to carelessness and lapse of medical assistance and negative attitude of the O.Ps,  the daughter of the complainant succumbed to death.    Thereafter the police case was registered against the O.Ps vide FIR no. 0212/2015 of New Town Police Station, Bidar dt.03/09/2015.  The  complainant and his family members were shocked by the negligence of the O.Ps.    The deceased daughter of the complainant was a student of P.U. College and she was 17 years old, brilliant student and most prospers girl, her aim was to get a fame in the society and also to give social services and women’s rights etc.  but, all the hopes and expectations have resulted  in vain and the respondents are liable for their negligency in treating the daughter of the complainant.  So, they are  liable to compensate, cost and damages to the extent of Rs.20,00,000/- payable by the respondents to the complainant.  As such the deceased Sangeeta who has lost her life at the age of 17, common expectation of life of the Indian citizen is 70 years if the deceased daughter of the complainant could have survived for remaining 53 years, there was huge gaining and services of the person will be counted, assuming the same the compensation of Rs.20,00,000/- is not excessive.   Hence the complainant approached this Forum for compensation.

 

3.                On receipt of Court’s notice the O.P.no.4 has not appeared before this Forum hence, has been placed exparte.  The O.P. no.1 to 3 engaged common counsel who filed separate written versions.  The O.P.no.1 in his written version stating that, the complaint filed by the complainant against O.P.no.1 is not at all legal and not maintainable.  The O.P.no.1 is the Government servant working in the Bidar Institute of Medical Sciences Teaching Hospital as a Government servant.  Therefore the present complaint is not maintainable against the Govt. servant.  The alleged incident took place in the Government Hospital and this case is treated free of cost.  Therefore the complaint is not maintainable.  Further without making the Bidar Institute of Medical Science Teaching Hospital as a respondent, the present complaint is not at all tenable.  In reply to para no.2 of the complaint, no doubt on 29/08/2015 the patient was admitted in the Hospital and she was operated on 29/08/2015 on emergency basis by the O.P.no.2 with all precautions under spinal anaesthesia given by one Dr.Rajkumar.  But in the said para, the complainant has falsely alleged that, she was got operated on 29/08/2015 by team of respondents’  Doctors.  But as a matter of fact, on 29/08/2015 the O.P.no.1 was not on duty as he was on leave from 28/08/2015 to 30/08/2015.  The rest of the contents of the said para which are concerned to O.P.no.2 and 3 need not be replied by this O.P.  The allegations made in this para particularly against the O.P.no.1 are hereby denied.

 

4.                   The contents of para no.3 to 7 of the complaint are all false and denied.  Accordingly from the date of operation, till her unfortunate death, she was under constant supervision of the other Doctors in the Hospital.  Therefore there is no negligency on the part of any of the Doctors who were there on duty from the date of her admission till her death.  Regarding filing of the case by the Police is nothing but a First Information Report and cannot be termed as negligence in the part of  the Doctors who have attended deceased Sangeeta in the hospital.   The O.P.no.1 is not having any personal knowledge with regard to the deceased Sangeeta, her education etc. as stated in complaint hence, the O.P.no.1 is not at all responsible for the death of deceased Sangeeta, the complaint is not entitled to seek any compensation from this O.P.no.1.  Hence the complaint filed by the complainant may be dismissed with costs.     

 

5.                    The O.P.no.2 claims in his written version that, The O.P. no2 is the Government servant in the Bidar Institute of Medical Sciences Teaching Hospital and they are working as a Government servant.  Therefore the present complaint is not maintainable against the Government servant.  Therefore the complaint is not maintainable against the O.P.no.2.    The contents of para no.3 to 7 of the complaint are not at all correct and therefore the same has been denied by this O.P.no.2.  The deceased Sangeeta D/o Babu, R/o Bagdal, Age 17 years, was admitted to the Hospital on 29/08/2015 at 12.04 p.m. as I.P.no.19289 with history of pain in abdomen, vomiting  and after diagnosis, ACUTE Appendicitis clinically was confirmed by Sonography test.  Therefore the O.P.no.2 herein has operated the said patient along with two expert Doctors by taking all necessary care while surgery.  After successful surgery, the deceased Sangeeta was attended by two experience Doctors who have given the treatment to her by promptly attending based upon her complaint.  Accordingly from the date of operation, till  her unfortunate death, she was under constant supervision of the other doctors in the hospital.    Further O.P.no.2 avers after operation the patient was  normal and stable due to successful operation.  On 4t day the O.P.no.2 was informed that, the patient complained about the pain in abdomen and attended by the duty surgeon Dr.Manjunath and prior to that by Dr. Anil Talwade and Dr.Hadi  and necessary measures were taken.  Unfortunately the patient was not able to revive and declared dead on 03/09/2015.  Therefore from these facts, it is evident that, the O.P.no2. has taken proper and necessary care while conducting the surgery and also after surgery the other duty Doctors have taken care of the said deceased Sangeeta.  But due to unfortunate complications raised to the patient, which is not in the hands of the Doctor nor it is  due to any negligence on part of the Doctors, since the subsequent complications of the patient is not due to or out of the surgery.  Therefore the complainant cannot blame any Doctors for the cause of death of said Sangeeta.  Hence the complaint filed by the complainant may be dismissed with costs.

6.             The O.P.no.3   in his written version stating that the complaint filed by the complainant against O.P.no.1 is not at all legal and not maintainable.  The O.P.no.1 is the Government servant working in the Bidar Institute of Medical Sciences Teaching Hospital as a Government servant.  Therefore the present complaint is not maintainable against the Govt. servant.  The alleged incident took place in the Government Hospital and this case is treated free of cost.  Therefore the complaint is not maintainable.   The O.P.no.3 is working as a professor and Head, Department of Anatomy, Bidar Institute of Medical Sciences, Bidar.  The facts of the present case is of the Department of surgery in which neither this O.P.no.3 is working nor he is concerned to the said department for any purpose, being in the department of Anatomy.  The O.P.no.3 was nowhere concerned with the operation being conducted on the deceased Sangeeta since the O.P.no.3 is not a surgeon and he was never involved in the treatment of deceased Sangeeta right from the date of her admission in the hospital, during operation and even after in respect of post-operative treatment till her death.  This O.P.no.3 at any time had no occasion to see the deceased Sangeeta as a patient in the hospital. 

 

7.               The contents of para no.3 to 7 of the complaint are not at all correct and the same has been denied.  The O.P.no.3 claims, he is particularly nowhere concerned to the alleged incident  of operation, post-operative treatment of deceased Sangeeta.  Therefore there arises no question of any act by this O.P.  In particular in unfair trade practice ignoring ethics of profession etc. as alleged in the said para.  As a matter of fact, the O.P.no.3 is working as a Professor and Head, Department of Anatomy Bidar Institute of Medical Sciences, Bidar.  The O.P.no.3 was deputed to JNMC Belagavi to attend the MEU Co-ordinator’s meeting and M.C.I. ATCOM Module workshop and hence he was on OOD on 27/08/2015.  Further the O.P.no.3 was on leave on 29^th to 31^st August-2015.  Further the O.P.no.3 was in charge Director of the Bidar Institute of Medical Sciences, Bidar on 01^st and 2^nd-September-2015 and thereafter from 3^rd September onwards he continued his service in the capacity of professor and Head, Department of Anatomy.  In view of these facts the present complaint deserves to be dismissed with costs.

 

 

 

 

8.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

 

 

 

1. Do the O.Ps prove that, neither the deceased nor her complainant father was a Consumer?

 

2. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

3. What order ?

 

 

9.           Our answers to the points stated above are as follows:-

 

1. In the negative.
2. In the affirmative.
3. As per the final order, for the following:

 

 

 

:: REASONS ::

 

10.               Answers to point no.1 and point no.2 would go side by side and answered on a common plat form.   The admission of deceased Sangeeta in the hospital and her surgery for appendectomy is already admitted by the O.P.no.2.  So also her death post surgery on 03/09/2015.  The originally impleaded three O.Ps, all Doctors working in Bidar institute of Medical science, Bidar, have raised a basic denial of their liability, posing a question that, the deceased was being treated free of cost in a Govt. hospital and they being Govt. servants are not liable to pay any damages for such untoward death of Sangeeta obviously, under legal advice they intend to take shelter of the exception clause of section 2(1) (o) which specifie a service not to include “ the rendering of any service free of charge or under a contract of personal service”.  The O.P.no.4 has chosen not to participate in the case and  has been placed exparte.  But, the fact remains, the O.P.s no.1 to 3 are employees of O.P.no., and he therefore is liable for the misfeasance/malfeasance of all of them.  

 

11.                  The million dollar question now props up-was the deceased in reality being treated free of cost?  To answer that aspect, we gaze at the copy of the documents filed by the complainant as Ex.P.1 an O.P.D. slip bearing Regn. No.219754/2015 dt. 29/08/2015.  It appears at about 11.11.28 A.m. of the same day, she got herself registered in the hospital by paying a paltry sum of Rs.5/-  It may be a subsized charge, but not fully free of cost.  But however, she was taken as an  inpatient vide Ex.P.2, by paying a further sum of Rs.10/- and was diagnosed as a case of “ Actue Appendicitis”.  Routine examinations were conducted and  she was operated for the ailment “ Appendectomy”.    Upto this extent, the matter is fine and in confirmity with medical science, since any further postponement of surgery could have caused a perforation of the infected appendix, ultimately resulting in a severe complication of “ Peritonitis”. 

 

12.                     The O.P.no.1 and 3 have washed off their hands from any accountability, the former claiming to be on leave and the later claiming to be H.O.D. of Anatomy department, a non clinical faculty and further claiming to be on O.O.D.  at the given time at Belgavi and his non-access to the surgical department, which took up the further management o the case of the patient.  The O.P.no.2 has however admitted the fact of surgery with the help of other experts and her post operative care to have been taken care of by Dr.Manjunath, Dr. Anil Talwade and Dr. Hadi in appropriate manner.  But what was the real complication post operation?  Neither O.P.no.2 spells it out, nor he has preferred to examine his associate Doctors who are claimed to be monitoring the patient.  To utter dismay, we don’t find a scrap of paper in the entire records, where any resistance or sensitivity test of drugs was ever conducted in the case of the deceased.  We are therefore, inclined to believe that, certain septicaemia or other  serious health complications like rupture of sutures, or problems with respiratory or circulatory system had occurred to the patient resulting her untimely death due to the negligence of the Doctors.  Fortifying our inference as such, we take not of the facts that, an untimely death has happened to a young girl vide death certificate at Ex.P.3 and News paper clippings ( copies) as Ex.P.4 & Ex.P.5, wherein the indulgence of the District Administration was involved the localites raising a hue and cry,  a case was registered

By the Bidar Town police vide Ex.P.6 and post mortem was conducted vide Ex.P.7.  Albeit, the post mortem report is  in- conclusive, but the fact remains, the patient  Sangeeta died in the hospital while being treated as inpatient post operatively.  What was the cause of death?  None knows, excepting th3e attending Doctors of the Govt. hospital.  But, were they taking due care of a critical patient?  It appears, due to strike of the Doctors, the poor girl was left in the lurch.  There is no evidence of her being shifted to I.C.U., for post operative management or any sustainable management ensuring her death in harness.    The blame squarely lies on the surgeon and his employer the O.P.no.4.  A precious,  booming, vibrant life of a young girl of 17 years had come to an end due to the inaction of striking Doctors and both O.P.no.2 and 4 stand liable for the same, no appropriate care postoperatively being evident from the entire case records.  Few social workers appraised the District Administration vide a representation on 07/09/2015 vide Ex.P.8 and the Minister of the state of in-charge  of health department vide Ex.P.9, demanding C.O.D. enquiring but the matter is still is limbo.  So also the representation to Dirstict-in-charge Minister vide Ex.P.10.  It is also born out of documents submitted by the complainant, h is legal notice Ex.P.11   date. 09/10/2015 was never given a thought by the hospital authorities or doctors concerned.

 

13.                   Taking into consideration the corollary of events Supra, we are of the opinion that, not only there has been a mighty deficiency of service in managing the post operative care but also a shameless apathy of all concerned, including the state administration and hence we answer the point accordingly.

 

14.       Point No.3.   Coming to consider the appropriate compensation on account of the death caused to late Sangeeta due to negligence and professional misconduct of the doctors concerned in particular and the hospital concerned in general, we agree that, this case would not stand paripassu with that of a death under the Fatal accident act. but however, a torts is a torts and the torts feasure must compensate the sufferer adequately.

 

15.                   The complainant has claimed an astronomical sum ofRs.20,00,000/- claiming that his daughter was a brilliant student and was aspiring to be an I.A.S. officer.  However, no document was ever furnished proving the brilliancy of the victim.

 

 

16.                   The complainant has submitted a judgement reported in 2016(1) CPR 380(NC)- Dr.(Mrs) Monika Roy and Anr. V/s Dr.B.L. Chittalagra and ors.

 

 

1.      Consumer Protection Act, 1986-Section 21-Medical services-Medical negligence-Treatment for acute appendicitis-Death of young patient-Deceased was a young healthy woman-She died within two days of hospitalization and within 36 hours of her operation.  As per medial literature sepsis in surgical patient continues to be a common and potentially lethal problem-Early control of septic source is mandatory-Type and extent of surgery depends on underlying disease process and severity of intra-abdominal infection-To establish liability of a doctor for medical negligence, complainant must prove that doctor deviated or departed from accepted standards of practice and that such departure was a proximate cause of patient’s injuries-Departures of O.Ps individually and together in treatment and diagnosis of patient led to delay in patient’s surgery and were a proximate cause or substantial cause contributing to speticemic shock and death—Patients approached hi-tech hospitals with expectation of treatment and consultation from experts and bet doctors-Even acute appendicitis, without any complications, needs immediate medical attention—It should be considered as a medical emergency as complications can arise suddenly and patient’s health may decline rapidly—Compensation of Rs.40,00,000/- with 6% interest awarded.

2.  In another case reported in 2012 AIAR ( Civil ) page-529, at para 4 of page 531 M/s Narne Construction P.Ltd V/s Union of India, the Hon’ble Supreme Court has been pleased to hold as follows:-

 

In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition.  The clause is thus very wide and extends to any or all actual or potential users.  But the legislature did not stop there.  It expanded the meaning of the word further in modern sense by extending it to even such facilities as are available to a consumer in connection with banking, financing etc.  Each of these are wide-ranging activities in day to day life.  They are discharged both by statutory and private bodies.  In absence of any indication, express or implied there is no reason to hold that authorities created by the statute are beyond purview of the Act.  When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service.  A State Bank or nationalised bank renders as much service as private bank.  No distinction can be drawn in private and public transport or insurance companies.  Even the supply of electricity or gas which throughout the country is being made, mainly, by statutory authorities is included in it.  The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies.  The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility”.

 

 

17.                   To calculate a just compensation, we have before us a judgement of the Hon’ble High Court of Karnataka in the matter of fixing compensation in case of death of a minor in Motor accident, reported in [2014 Kant MAC 506 (Kant)] in which the judgement of Hon’ble Apex Court in Kishan Gopals’case-2013 AIR SCW 5037 was followed and a compensation of Rs.4,50,000/- together with a further sum of Rs.50,000/- towards loss of love and affection and funeral expenses were awarded.  Holding as underneath:-

 

3.           Motor Vehicles Act, 1988 Seciton 173 (1)—Appeal Enhancement f compensation—Just compensation—Deceased, a minor boy aged 6 years died  accident-Claimants: mother and sister of deceased Tribunal awarded Rs.2,83,000/- as compensation—Age of deceased and accident not disputed—Compensation as well as future prospects cannot be decided on basis of gender-Relying on judgment of Apex Court case of Kishan Gopal 2013 AIR SCW 5037 total compensation of Rs.5,95,000/- awarded- Impugned judgment and award dated 19/02/2011 of Tribunal modified by awarding additional compensation of Rs. 3,12,000/- with interest @ 6% p.a.—Compensation of Rs. 2,83,000/- as awarded by Tribunal enhanced to Rs.5,95,000/- Appeal partly allowed.

 

                     We propose here to follow the same principle and proceed to pass the following:-

 

:: ORDER ::

 

1. The complaint is allowed in part.
2. The non participating OP No.4 is held liable to pay a compensation of RS. 5,00,000/- together with an interest @ 6% p.a. calculated from the date of death i.e., 03.09.2015, till date of realisation, being vicariously liable for the negligency and deficiency of service in the part of the OP No.2.
3. Deficiency of service is fixed on the OP No.2 and the OP No.1 & 3 are exonerated in the case due to lack of proof.
4. It would be open for the Govt. (O.P.No.4) to enquiry into the matter, ascertain the responsibility and collect back the amount from the person responsible of causing death.
5. Four weeks time granted to comply this order.

  

  

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 27^th  day of March-2017)

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                            

 

Documents produced by the complainant

1. Ex.P.1- O.P.D. slip issued by BRIMS,Bidar,dt.29/08/2015.
2. Ex.P.2-  Copy of Case sheet.dt.05/09/2015.
3. Ex.P.3-  Death certificate of Sangeeta.
4. Ex.P.4  & P.5 News paper copies.     
5. Ex.P.6 Copy of F.I.R.
6. Ex.P.7-Post Mortem Report.
7. Ex.P.8-Copy of letter addressed to Deputy Commissioner, Bidar.
8. Ex.P.9-Copy of letter addressed to Sri.U.T.Khadar, Health Minister, Bangalore.
9. Ex.P.10- Copy of letter addressed to Smt. Umashree , Dist. In-charge Minister.
10. Ex.P.11- Copy of legal notice,dt.09/10/2015.
11. Ex.P.12-Copy of ration card of complainant showing relationship with deceased.

 

 

Documents produced by the Opponent/s

 

                Nil 

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.     

 

 

mv.