Kerala

Idukki

CC/14/262

Mrs.Sumy W/o Late Biju - Complainant(s)

Versus

Dr.Rogin George Joseph - Opp.Party(s)

Adv. C K Vidyasagar

27 Sep 2019

ORDER

DATE OF FILING : 6.8.2014

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 27^th day of September, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.262/2014

Between

Complainants : 1. Sumy, W/o. Late Biju,

Thayyil House,

Chembalam P.O.,

Vattappara, Nedumkandom, Idukki.

2. Pushpakumari, M/o. Late Biju,

Thayyil House,

Chembalam P.O.,

Vattappara, Nedumkandom, Idukki.

3. Babu, S/o. Kumaran,

Thayyil House,

Chembalam P.O.,

Vattappara, Nedumkandom, Idukki.

4. Bijutha, D/o. Late Biju,

Thayyil House,

Chembalam P.O.,

Vattappara, Nedumkandom, Idukki.

(All by Adv: C.K. Vidyasagar

& P. A. Suhas)

And

Opposite Parties : 1. Dr. Rogin George Joseph,

Medical Trust Hospital,

Nedumkandom.

2. Dr. Rosamma Joseph,

Medical Trust Hospital,

Nedumkandom.

3. Dr. Molly George

W/o. Dr. Rogin George Joseph,

Medical Trust Hospital,

Nedumkandom.

4. Medical Trust Hospital,

P.O. Box No.5,

Nedumkandom.

(All by Adv: Johnson Joseph)

 

 

 

(cont.....2)

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O R D E R

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

The husband of the 1^st complainant Biju had a problem of kidney stone, taken for treatment in 4^th opposite party hospital where as opposite parties 1 to 3 are partners of the hospital. Opposite parties 1 to 3 are working as doctors in 4^th opposite party hospital. The husband of the 1^st complainant as well as the son of the complainants 2 and 3 was admitted in the 4^th opposite party hospital for treatment of kidney stone on 17.4.2014. He was treated at there for the same ailment in the year 2012 also. The opposite parties directed to obtain a CT scan of abdomen and pelvis of the Biju. As the nearest scanning centre was at Kattappana, he was taken to his home at Vattappara, when only it was learned that the scanning staff was not available there. On the same day at 3.30 pm, the patient taken back to 4^th opposite party hospital where the 2^nd opposite party prescribed medicines and injection and the Biju was injected by the nurse and was admitted there. There was no relief in pain and the patient exhibited acute pain, restlessness and breathing problems, during the whole night and the bystanders reported the same to the duty doctor. The injection site on the left leg had developed severe scaring blisters for which some ointments were applied by the duty doctor and duty nurse. The patient was shifted to ICU during the night. In spite of deteriorating condition of the patient, the opposite parties did not turn up to examine the patient and the duty doctor was unable to grasp the relevance of symptoms exhibited by the patient. It was now learnt that the patient was succumbing to anaphylactic reaction, that was not noticed or attended and was not treated.

 

Complainant further averred that they have gathered that the medicines given to the patient Biju, had the propensities of triggering anaphylactic reaction in some person which warrants efficient crisis management regime, which none of the opposite parties cared to take to save the life of the patient. Moreover, the nursing staff on duty had acted negligently in not administering the test dose of such medicines before giving the injection to the patient. Had the duty doctors and the duty nurses followed the standard procedures with due care and caution in administering and injecting various medicines, some of which are reported to cause anaphylactic reaction, the patient's life would not have been a casualty.

 

Complainant further averred that the duty doctor and duty of the opposite party hospital failed to diagnose the deteriorating condition of the patient

(cont.....3)

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clearly speaks the utter deficiency of their skill as medical men. That they did not resort to any standard crisis management regime to save the sinking patient also exhibits gross negligence on their part.

 

Complainant further averred that the young man died as a victim of gross negligence from the part of the opposite parties and their skill who had failed to exhibit a reasonable level of efficiency, skill and care in the treatment of the deceased Biju. Hence all the opposite parties are liable to compensate the huge loss and sufferings caused to the complainant due to the untimely death of this young man. The deceased Biju was a hard working healthy man. He was worked in Soudi Arabia as a driver. Here he is working as a JCB operator and earn Rs.1500/- per day of work. He was getting an average income of Rs.20000/- per month. He was the only bread winner of his family consist of aged mother and wife. The 1^st complainant, widow was pregnant by 4 months at the time of the sad demise of Biju. Hence the complainant filed this petition for allowing Rs.20 lakhs from the opposite party by way of compensation.

 

Upon notice, opposite parties entered appearance and filed detailed reply version. In their version, opposite parties 1 and 3 contended that the 3^rd opposite party is working as a paediatrician in the 4^th opposite party hospital and she did not attend or treat the patient during the course of his treatment. She is unnecessarily joined as a party to the proceedings for the only reason that she had been worked there at that time. Further the duty medical office, Dr. Selvaraj, who had attended and treated the patient when he developed sudden hypotension and bradycardia and conducted cardio-pulmonary resuscitation is also a necessary party to the proceedings.

 

The 1^st opposite party admitted the treatment of deceased Biju who was admitted their on 17.4.2014. After clinical observation, 1^st opposite party had prescribed anti-colic medicines for pain relief. He was symptomatically better on 18.4.2019. He was advised USG abdomen on 19.4.2014 and he reported back on 5 pm on the same day. The patient had complaint of pain in gluteal area diagnosed gluteal abscess and prescribed inj. Tramadol, inj. Phenergan, tab. Alprax and Thrombofab ointment for local application. The patient did not have any manifestation of renal calculi and duty doctor had attended the patient and prescribed another dose of anti-colic medicine as per protocol. The patient get relief of pain and slept will and comfortable during night. The patient turned restless followed by unexpected sudden BP fall and went into shock in the morning 20.4.2014 around 6.30 am. Immediately the patient was attended by the duty medical office and started cardio-pulmonary resuscitation and

(cont.....4)

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intubated and provided 100% oxygen with Ambu Bag ventilation and shifted him to medical ICU. The patient started on medicines inj. Adrenaline, inj. Atropine, inj. Dopamine along with DC shock. Dr. L. Bhaskar working as anaesthetist and critical care expert had also seen the patient in MICU at 6.40 am and continued cardio-pulmonary resuscitation as per protocol. But in spite of timely resuscitation measures and medicines with repeated DC shock, the patient did not respond to treatment and succumbed to death at 7.00 am. Opposite party further contended that, the unexpected and spontaneous collapse with hypotension and bradycardia point pulmonary oedema and clinically a conclusive diagnosis was not viable as the patient's condition deteriorated rapidly despite timely cardio-pulmonary resuscitation.

 

Opposite party further contended that the patient was administered anti-colic medicines which are the standard medicines prescribed for the ailment and the same was administered by qualified and experienced nursing staff. The medicines were administered with due care in standard dosage in strict regard to pharmacological guidelines and he did not develop anaphylaxis. As per available evidence based on clinical manifestation and autopsy, the patient died due to myocardial infraction which did not respond to timely resuscitative measures and medicines. The death of patient was not caused due to any act of omission on the part of the doctors or other medical staff in the 4^th opposite party hospital. There was no negligence or deficiency on the part of the opposite parties at any point of time as stated in this case.

 

Opposite party contended that gluteal abscess is a reported common manifestation after IM injection and its treatment was in accordance with standard protocol. It has no nexus with the cause of sudden occurrence of breathlessness hypotension and bradycardia. The 1^st opposite party had treated the patient with due care and caution and his death occurred due to factors beyond the control of the doctors and nursing staff attended and treated him and hence these opposite parties are not liable to pay amount to the complainants by way of compensation. The 1^st opposite party is having qualification of MBBS, MS (Ortho) and working as a consultant orthopaedician in the 4^th opposite party hospital with 11 years experience in the respective field. Hence the complaint is liable to be dismissed with cost to these opposite parties.

 

In their reply version, opposite parties 2 and 4 recreated the version of opposite parties 1 and 3 and further contended that the 2^nd opposite party is a director of 4^th opposite party hospital and also working as consultant gynaecologist in the hospital. The 2^nd opposite party did not attend or treat the

(cont.....5)

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patient during the course of his hospital stay. The statement made in the complaint that the 2^nd opposite party was one among the doctors who treated the deceased patient is not correct and hence denied. Hence the complaint is liable to be dismissed with the cost of 2^nd and 4^th opposite parties.

 

The evidence adduced by the complainant by way of proof affidavit and documents. Complainant and one Shyma Joseph were examined as PWs1 and 2 respectively. Exts.P1(series) to P14 marked. Ext.P1(series) is the copy of FIR and FIS of the Nedumkandam Police Station in crime No.343/2014. Ext.P2 is the attested copy of post-mortem certificate. Ext.P3 is the copy of case sheet of 4^th opposite party hospital. Ext.P4 is the copy of list of pathological report. Ext.P5 is the copy of post-mortem certificate. Ext.P6 is the driving licence and badge of deceased Biju. Ext.P7 is the passport of deceased Biju. Ext.P8 is a certificate issued by one Shyms Joseph (marked with objection). Exts.P9 and P10 are newspapers dated 22.4.2014 and 21.4.2014 respectively. Ext.P11 is the copy of suit notice. Exts.P12 and P13 are the reply notices issued by 2^nd and 1^st opposite parties respectively. Ext.P14 is a photograph and its CD.

 

From the opposite side, 1^st opposite party was examined as DW1 and Ext.R1 postmortem certificate is marked.

 

In the meantime, complainants filed a petition to implead one Bijutha, minor daughter of deceased Biju and 1^st complainant Sumy, being their legal heir, as an additional 4^th complainant. The matter heard. The Forum directed the complainants to implead Bijutha, the minor daughter of Late Biju as additional 4^th complainant.

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have heard the counsels for the parties and had gone through the documents.

 

The learned counsel for the complainant in his oral submission went through the complaint and drew attention to a few important issues. Paragraph 4 of the complaint describes what happened to the patient and what type of

(cont.....6)

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treatment accelerated the sudden death of the patient. The learned counsel pointed out in this para that, they specifically stated that the medicines administered had the properties of trigging anaphylatic reation in some person, which warrants efficient crisis management regime, which none of the opposite parties cared to take to save the life of patient. He added that, the nursing duty staff had acted negligently in not administering test dose of such medicines before giving the injections to the patient. Further argued that the opposite party doctors and their duty doctors and nursing staff could not even diagnose the cause of deteriorating condition of the patient. This is a definite case of utter deficiency of their skill as medicalmen. On the death of the Biju, the opposite parties were giving out heart attack or kidney burst and bleeding as the cause of death, to the complainants and the people who gathered there. Both the above projected cause is belied by the postmortem report (Ext.P2) as the kidneys and heart of the deceased Biju was found intact. The above conduct of the opposite party make it clear that the opposite parties could not diagnose the cause of deterioration of the patient's condition.

 

The learned counsel further pointed out that, when he taken back without undergoing CT scanning on 19.4.2019 at 3.30 pm to 4^th opposite party hospital, the 2^nd opposite party examined him and prescribed medicines. Biju was injected by the duty nurse and was admitted in the pay ward. The injection did not relieve the patient from pain and the patient was exhibited pain, restlessness, discomfort and breathing difficulties during the whole night. The by-standers were reported it to the duty nurses. The injection site on the left leg had developed severe scaring blisters. For which some ointment were applied. It is evident in Ext.P13 photograph and the CD. Immediately the patient was taken up to ICU during the night itself. In spite of the deteriorating condition of the patient, opposite parties did not turned up to examine the patient and the duty doctor was unable to find out the relevance of symptoms exhibited by the patient. The death of the Biju caused solely due to the anaphylatic reaction that was not noticed or attended and was not treated at all.

 

The counsel further argued that while on cross examination, DW1 (1^st opposite party), categorically stated that, “anophalyxis reaction can be trigged by many causes. He further deposed that, it is possible in drastic fall in blood pressure and that drug eventually lead to collapse and can become fatal ?(Q) Possible (A). The witness further stated that if these reactions is not identified and treated timely, the reaction may progress into swelling of face and cardiac vascular collapse, coma and death ?(Q) Yes(A). Death is usually due to hypotension which involves dilation of the blood vessels. He further deposed

(cont.....7)

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that he has not received any information regarding the skin rashes caused to the deceased. The learned counsel for the complainant further put a question to the witness that, 19.4.2014 cm{Xn-bn skin rashes D­WvSm-b-Xmbn Xm¦Ä¡v report In«ntbm ?(Q)  In«n (A).  C§-s\-sbmcp symptom D­WvSmb Imcyw duty doctor \n§sf Adn-bnt¨m ? (Q)  cm{Xn-bn \S-¡p¶ FÃm Imc-yhpw Rm³ At-\-z-jn-¡m-dn-Ã.(A) From the deposition of 1^st opposite party, (DW1), we can see that on the right of 19.4.2014, the patient has showed the symptoms of skin rashes and the duty doctor advised Thrombo fob ointment. The learned counsel for the complainant further pointed out the deposition of 1^st opposite party is more than sufficient to come to a conclusion that the death of the Biju caused due to the anaphylatic reaction, which was found out or treated timely.

 

By relying the suggestion of Robert N. Moles and Bibi Sangha, reported in Medical Issues – Allergies and Anaphylaxis, the learned counsel argued the “Anaphylaxis is a circulating allergen affects mast cells throughout the body. Changes in capillary permeabilities enable the clear fluid in the blood (plasma) to leak out into the surrounding tissues. This produces what we see as swelling and oedema (excess fluid) in the dermis (the skin). This appears as raised welts, or hives which appear on the surface of the skin. This appears as raised welts, or hives which appear on the surface of the skin. Smooth muscles along the respiratory passageways contract. The narrowed passages make breathing extremely difficult. In severe cases, extensive peripheral vasodilation occurs (vaso = blood vessels; dilation = expands) producing a fall in blood pressure which can lead to circulatory collapse.

 

As per the opinion of the authors of the journal – Dr. Robert N. Moles and Bibi Sangha, “many of the symptoms of immediate hypersensitivity can be prevented by the prompt administration of antihistamines. These drugs block the effect of the histamine which has been released. Benadryl is a popular anti-histamine available over the country. The treatment of severe anaphylaxis involves antihistamine, certicosteroid and epinephrine injection (Martini Fundamentals of Anatomy and Physiology 5^th edition pp 788-789). The authors further opined that if not treated the reactions may progress to skin rashes, respiratory distress, swelling of face, airway or whole body, hyper-peristalsis cardiac arrythmias, cardio vascular collapse, abnormal blood clotting, coma and death.

 

The learned counsel by relying the judgement of Hon'ble High Court of Kerala reported in 2013 (2) KHC 450 D.B in Dr. Ummer N. and another Vs.

(cont.....8)

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K.M. Hameed and others, the Hon'ble Court observed that, “error in diagnosing – proper medicine not administered – whether a case of medical negligence – Held, a doctor who was expert in pathology diagnosing the disease – when he fails to exercise such degree of case, he is said to have committed professional negligence and liable to compensate the victim under law of forts.

 

On the other hand, the learned counsel for the opposite parties vehemently argued that, opposite parties 1 to 3 are the directors of the 4^th opposite party hospital and none of them treated the deceased Biju. The duty medical officer Dr. Selvaraj, who had attended and treated the patient when he developed sudden hypotension and bradycardia and conducted cardio-pulmonary resuscitation is also a necessary party. The learned counsel further argued that the patient was given due care and attention during his treatment in the 4^th opposite party hospital. The death of patient was not due to any act or omission on the part of the doctors or other medical staff in the 4^th opposite party hospital. There was no negligence or deficiency in service on the part of the opposite parties 1 to 3. The learned counsel further argued that the medicines administered to the patient was in standard dosage and proper route and site as per guidelines. The complaint of the patient was duly attended by the duty doctor and the 1^st opposite party in time and the opposite parties 2 and 3, working as gynaecologist and paediatrician have no role in examining the patient admitted with diagnosis of renal colic. The statement that the duty doctor was unable to grasp the relevance of the symptoms exhibited by the patient, learned to be anaphylatic reaction which was noticed attended or treated in high ill motivated.

 

The counsel further pointed out that the patient did not have manifest symptoms requiring active intervention during night except pain abdomen, which is a common manifestation of renal calculi and duty doctor attended the patient in medical ward and prescribed another dose of ante-colic medicines as per protocol. The patient got relief of pain and slept well and comfortable during night. The patient turned restless followed by unexpected sudden BP fall and went into shock in the morning on 20.4.2014. But in spite of timely resuscitative measures and medicines, the patient succumbed death at 7.00 am. As opined by the police surgeon, who conducted post mortem, in Ext.P5, post mortem certificate, the death was caused to the patient due to myocardial infactor. Since these was no negligence or deficiency in service on the part of the opposite party at any point of time in the treatment of the deceased, the opposite parties are not liable to compensate the complainants.

 

(cont.....9)

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We have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the materials on record. It is an admitted fact that the deceased Biju was admitted in the 4^th opposite party hospital with complaints of renal colic on 17.4.2014 and after clinical examination, he was prescribed anti-colic medicines for pain relief. He was discharged on 19^th, with an advice for USG abdomen. The patient came back again on 19^th and had complaint of pain in gluteal area. The opposite parties directed to obtain CT scan of abdomen and pelvis. As the nearest scanning centre was at Kattappana, he was taken to his home at Vattappara enroute to Kattappana, when only it was learnt that the scanning staff was not available there and hence on 3.30 pm on the same day, he was taken back to 4^th opposite party hospital, where the 1^st opposite party examined him. Then continued treatment there till the death of Biju on 20.4.2014 at 6.30 am.

 

Here the main contention of the 1^st and 3^rd opposite parties is that one Selvaraj, who was a Duty Medical Officer, who attended the patient was not made as a part in this petition. Eventhough opposite parties pointed out that Dr. Selvaraj was not made as a party in the complaint is bad for non-joinder of necessary party. By expecting this point as a primary issue by the opposite parties, complainant categorically stated in the 3^rd paragraph of the complaint, the reason why the duty doctor Selvaraj was not incorporated in the complaint. The complainant averred that the legal notice issued to the Dr. Selvaraj along with other opposite parties in the complaint, was returned with a postal endorsement that 'address left, present address not known' and more over he is only a desirable party and not a necessary party at all. Moreover, on cross examination of the PW1, father of the deceased Biju, none of opposite party has not put a question to the witness has why the complainant omitted to implead Dr. Selvaraj or why the complainant sought any relief against Dr. Selvaraj. On perusing the reply version except opposite parties 1 and 3, no other opposite parties raised such a question. On perusing the entire materials on evidence, Forum found that the doctor who attended the deceased may not be made as a party since there is no serious allegation against him. The non-impleadment of the said doctor is no way affect the manifestation of the petition. Hence the issue found in favour of the complainant.

 

Then regarding the treatment given to the patient Biju from 19.4.2014 to 20.4.2014 by 4^th opposite party hospital. On going through the contention of the complainant as well as the reply version. It is seen that when the patient Biju approached the opposite party hospital on 19.4.2014, 1^st opposite party directed CT Scan abdomen. But from the averment it is seen that the patient

(cont.....10)

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again approached the 4^th opposite party hospital without having any CT Scan report on the same day at 3.30 pm. Ext.P2 treatment record shows that on 19.4.2014, at 3.45 pm, injection for pain given in left gluteal area. From Ext.P2 medical records, it is very clear that eventhough the 1^st opposite party advised the patient for USG abdomen, he was taken back to the hospital without having any scan report, the 1^st opposite party given treatment to him. As per the reply version and the averment in the complaint, when the deceased approached the 4^th opposite party hospital on 19.4.2014, after clinical examination, 1^st opposite party returned him for undergoing a USG, when he was again approached, 1^st opposite party without any scan report, was admitted there and started treatment. From the evidence, it is revealed that 4^th opposite party hospital given treatment to the patient without having a scan report that means that handled the matter carelessly. If the ailment of the patient can be treated without a scan report for what purpose the 4^th opposite party hospital advised to undergo a USG and obtain a report. From this moment itself, the negligence and lack of care started. From the records, it is seen that 1^st opposite party examined Biju and prescribed medicines and injection. It is admitted by the 1^st opposite party in cross examination that during the whole night, the patient was exhibiting pain, restlessness, breathing difficulties and other discomforts. Moreover, the injection site on the left leg had developed severe scaring blisters for which some ointment were applied by the duty nurse.

 

While cross examination, DW1 (1^st opposite party) deposed that 19.4.2014 cm{Xn-bn skin rashes D­WvSm-b-Xmbn Xm¦Ä¡v report In«ntbm ?(Q)  In«n (A).  C§-s\-sbmcp symptom D­WvSmb Imcyw duty doctor \n§sf Adn-bnt¨m ? (Q)  cm{Xn-bn \S-¡p¶ FÃm Imc-yhpw Rm³ At-\-z-jn-¡m-dn-Ã(A). From the answer of witness, we can see that he was least bothered about the conditions of the patient who was admitted in the hospital for various ailments. The patient admitted in the hospital expect minimum standard of care from the side of hospital authorities including the doctor who given treatment.

 

In Dr. Laxman Balakrishna Joshi Vs. Dr. Trimbak Bapu Godbole's case (AIR 1969 SC 128), A three Judge Bench of the Hon'ble Supreme Court of India stipulated that the standard to be applied by a medical practitioner must be of a 'reasonable degree of care”. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertaken that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties etc. a duty of care in deciding whether to undertake the case, a duty of

(cont.....10)

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care in deciding what treatment to give or a duty of care in the administration of treatment. A breach of any of those duties given a right of action for negligence to the patient.

 

On evaluating the medical records, it is seen that while on admission there, 1^st opposite party advised injection Trudamol and Phenorgan and the nursing staff given injection. This injection caused Anaphylaxis reaction to the patient. As deposed by 1^st opposite party, Anaphylaxis reaction can be trigged by many causes – swelling and edima over the skin can be a symptoms of Anaphylaxis reaction. As pointed out by the learned counsel for the complainants, due to the administration of this injection, the injection site of the patient's left leg had developed severe scaring blisters. For fortifying his plea, complainant produced Ext.P14 photograph. The marking of the photograph was objected by the opposite party on the reason that it cannot be identified with the leg of the deceased Biju. But on cross examination, PW1, the father of the Biju, deposed that he got the photograph from the local channel people, “the Idukki Vision”. This deposition of the witness can be believed, because it is admitted that on getting information about the death of Biju, local people are gathered there and since the situation was uncontrollable, immediately local police and local media persons were interfered the matter. Local police registered a case against the hospital authorities and the un-natural death was reported in the newspapers and channels.

 

On going through the entire materials in the case, it is seen that the nursing staff had acted negligently in not administering the test dose of such a medicine before giving the injection to the patient. If the doctors and duty nurses followed the standard procedures with due care and caution in administering the injection to the deceased Biju, his life could have been saved. The 1^st opposite party doctor and the duty nursing staff of 4^th opposite party could not even diagnose the cause of deteriorating condition of the patient, it leads his death is a gross deficiency in their skill. As the learned counsel pointed out, the 1^st opposite party doctor or the nursing staff miserably failed to resort to any standard of crisis management to save the life of the deceased.

 

The learned counsel for the complainant established the Anaphylaxis reaction with the aid of medical literature – Issues relating to Allergies – Anaphylaxis and sudden death. At the same time, except the contention in the reply version, no supporting evidence produced by the opposite parties to strengthen their version that they given due care and attention to the patient. The only document relying by the opposite parties is the Ext.P4 post mortem

(cont....12)

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certificate. The post mortem certificate states that the death of the Biju was because of cardiac arrest. As per the opinion of DW1, the symptoms of Anaphylaxix are conjunction of the respiratory passage and it can result extensive peripheral vasodilation – (the expansion of blood vessel). It can result in drastic fall in blood pressure and that eventually leads to collapse and can become fatal.

 

On overall evaluation of the evidence on record in this case, the Forum is of a considered view that, the death of the Biju had caused due to the mal administration of medicine phenorgan and its side effects. It cannot be diagnosed by the 1^st opposite party or the nursing staff of 4^th opposite party. They failed to diagnose the deteriorating condition of the patient and fails to extend timely medical aid. This is a clear case of medical negligence. Since the 1^st opposite party is the director of the 4^th opposite party, 4^th opposite party is vicariously liable for the negligent act of 1^st opposite party.

 

In Pushpa Vyas Vs. Dr. Sajan Daga and another one, case (II) 2019, CPJ III (NC), the Hon'ble National Court observed that the doctrine of vicarious liability extended the primary liability of the hospital for the wrong or negligent acts of the servants irrespective of whether their employment is permanent or temporary or casual or honorary whole time or part time as in the case of visiting physician and surgeon.

 

On perusing Ext.P6, it is seen that the deceased Biju was a driver in profession and having valid driving licence and badge. Except the oral evidence of one Shyms Joseph and one certificate issued by him stating that deceased Biju was his JCB operator, no valid evidence is produced to prove the monthly income of the deceased. On considering the age and family background of the deceased, the Forum is of a view that, the untimely death of the Biju caused much loss and mental agony to the family. At the time of death, 1^st complainant, the wife of the deceased was pregnant. On perusing record, it is seen that he was the only bread winner of his family. Due to sudden death, a huge loss was occurred to the complainant and it cannot be gauged in terms of money. From the evidence, it is very clear that the death of the Biju is the outcome of gross negligence on the part of the opposite parties.

 

There has been a breach of legal duty on the part of opposite parties 1 to 4, resulting death of the Biju. Eventhough no salary details have been filed with the complaint, having regard to the fact that the deceased was at the age of 35 at the time of death, we find it is a fit case to award a lump sum of Rs.10 lakhs

(cont....13)

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which includes the mental agony and pain suffered due to the loss of consortium and love and affection of the family involved. Hence being the directors of 4^th opposite party hospital, opposite parties are directed to pay an amount of Rs.10 lakhs to the complainants. The amount shall be paid within 30 days from the date of receipt of a copy of this order, failing which the amount shall carry interest at the rate of 12% per annum from the date of filing this complaint till the date of realisation. We also award Rs.10000/- as litigation cost. The amount of Rs.10 lakhs awarded as compensation shall be divided as follows : The opposite parties are directed to deposit an amount of Rs.5 lakhs in the name of Additional 4^th Complainant, the minor daughter of deceased Biju and 1^st complainant, jointly with the name of her mother, the natural guardian, till she attains majority. Balance amount of Rs.5 lakhs shall be divided equally to the 1^st and 2^nd complainants, being the wife and mother of Late Biju.

 

Pronounced in the Open Forum on this the 27^th day of September, 2019

 

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

 

 

Sd/-

SMT. ASAMOL. P, MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(cont....13)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Babu K.

PW2 - Shyms Joseph.

On the side of the Opposite Party :

DW1 - Dr. Rogin George Joseph.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - copy of FIR and FIS of the Nedumkandam Police Station

in crime No.343/2014.

Ext.P2 - attested copy of post-mortem certificate.

Ext.P3 - copy of case sheet of 4^th opposite party hospital.

Ext.P4 - copy of list of pathological report.

Ext.P5 - copy of post-mortem certificate.

Ext.P6 - driving licence and badge of deceased Biju.

Ext.P7 - passport of deceased Biju.

Ext.P8 - certificate issued by one Shyms Joseph (marked with objection).

Exts.P9 & P10 - newspapers dated 22.4.2014 and 21.4.2014 respectively.

Ext.P11 - copy of suit notice.

Exts.P12 & P13 - the reply notices issued by 2^nd and 1^st opposite parties

respectively.

Ext.P14 - photograph and its CD.

On the side of the Opposite Party :

Ext.R1 - postmortem certificate.

 

 

Forwarded by order,

 

 

 

SENIOR SUPERINTENDENT