STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH

R.B.T. No.1137 of 2008

In Appeal No.2580 of 2002

Durga Hospital, Mohalla Hasanpura, Bawal through Dr. Chunnilal son of Sh. Kanha Ram, Doctor and owner of Durga Hospital, Bawal, Tehsil Bawal.

                                                                                    ..…Appellant/OP No.1.

Versus

1.      Poonam;

2.      Manisha;

3.      Anchal;

4.      Pooja;

5.      Kajal

(minor daughters of Sh. Karan Singh, minor represented through natural guardian Sh. Karan Singh son of Sh. Banwari Lal, resident of Mohalla Jatwara, Bawal, Distt. Rewari).

6.      Sh. Karan Singh son of Sh. Banwari Lal, resident of Mohalla Jatwara, Bawal, Distt. Rewari.

                                                            ..…Respondents/Complainants.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

ARGUED BY: Sh. John Kumar, Advocate proxy for

                        Sh. Vikram Singh, Advocate for the appellant/OP No.1.

                        Sh. Vikrant Hooda, Advocate for the respondents/complainants.

MRS. NEENA SANDHU, MEMBER.

1.                     This is an appeal filed by OP No.1 against order of District Consumer Disputes Redressal Forum, Rewari (for short hereinafter to be referred as District Forum) dated 27.9.2002 passed in complaint case No.197 of 1999 : Poonam and others Vs. Durga Hospital and another.

2.            Briefly stated the case of the complainants No.1 to 5 is that their mother namely Smt. Tara and wife of complainant No.6 was brought to OP No.1 – Durga Hospital under pregnancy on 31.3.1999 for treatment. It was next averred that OPs No.1 and 2 examined the patient Smt. Tara and told her that her abortion was to be done. It was also told by the OPs to complainant No.6 i.e. Husband of Smt. Tara that they were fully competent to perform the abortion process and there was no need to go to other lady doctor. As per the complainants, OPs charged an amount of Rs.2,000/- as abortion charges. It was next averred that after operation, the patient started bleeding and she became unconscious. The patient, it was averred, was rushed to Janta Hospital, Rewari where Dr. Narender Yadav gave treatment to Smt. Tara from 10 AM to 8 PM and when bleeding was not stopped, he referred her to Safdarjang Hospital, New Delhi where the patient died on 1.4.1999 at about 2 P.M i.e. itself on the date of admission. Alleging medical negligence and unfair trade practice on the part of OPs in giving treatment to Smt. Tara resulting into her death, the complainants had filed a complaint before the learned District Forum claiming an amount of Rs.5 Lacs as compensation.

3.                     The version of OP No.1 in its written reply was that it had no concern with the case of abortion of Smt. Tara because as per OP No.1, the abortion was not done in OP No.1 Hospital. As per this OP, he was only a R.M.P and being a handicapped person, could not be able to conduct alleged abortion. It was pleaded by OP No.1 that he did not know OP No.2 Dr. Manju, who never worked in his hospital. Pleading no deficiency in service and unfair trade practice on its part, OP No.1 prayed for dismissal of the complaint.

4.                     OP No.2 did not appear before the learned District Forum and was proceeded against exparte vide order dated 1.9.1999.

5.                     In evidence, complainants tendered documents Ex.C-1 to Ex.C10 whereas on the other hand, O No.1 tendered documents Ex.OP-1 to Ex.OP-7.

6.                     The learned District Forum, in its analysis of the complaint, recorded in the impugned order that medical expert opinion in this case was not necessary because OPs were not qualified doctors as per their version and their stand was also belied by the Advertisment (Ex.C10) published in the newspaper. The learned District Forum while referring to the law settled on the issue further recorded in the impugned order that OPs are negligent in their duties and their services were also deficient. It also recorded that total refusal of OP No.1 from rendering service to Smt. Tara and ignorance about OP No.2 did not inspire confidence. Settling the amount of compensation to be awarded to the complainants, the learned District Forum observed that the deceased Smt. Tara was a young lady and she had left five daughters behind. Holding medical negligence in treating Smt. Tara on the part of OPs, the learned District Forum allowed the complaint and awarded a consolidated compensation of Rs.3 Lacs to the complainants to be shared equally and the OPs were made liable to pay this amount of compensation jointly and severally. The order was directed to be complied with within a period of one month failing which OPs were directed to pay interest on the amount of compensation @12% per annum from the date of death of Smt. Tara i.e. 1.4.1999 till realization. An amount of Rs.2,000/- was also awarded to the complainants as litigation charges.

7.                     Aggrieved by the said order of learned District Forum, OP No.1 has filed the present appeal before Haryana State Commission and the same has now been transferred to this Commission by the orders of Hon’ble National Commission, New Delhi. Sh. John Kumar, Advocate appeared as proxy for Sh. Vikram Singh, Advocate for the appellants/OPs whereas Sh. Vikrant Hooda, Advocate represented the respondents/complainants.

8.                     The learned counsel for the appellant/OP No.1 submitted that neither the deceased Smt. Tara ever approached OP No.1 Hospital for conducting abortion on 31.3.1999 nor any fee of Rs.2000/- was paid by her to OP No.1. He argued that the OP No.1 has been falsely implicated by the complainants just to grab huge amount of compensation. The learned counsel next argued that no OP No.1 himself is a 90% disabled person and thus how could he perform abortion of the deceased patient with the help of OP No.2 as alleged by the complainants in their complaint. He vehemently argued that OP No.2 had no concern with OP No.1 and OP No.2 did not know OP No.2 as she was never the employee of OP No.1 at any stage. He finally prayed that the appeal be allowed and the complaint be dismissed.

9.                     On the other hand, learned counsel for the respondents/complainants argued that the order passed by the learned District Forum is just, fair and legal and it should he upheld. He prayed that the appeal be dismissed with heavy costs.

10.                   We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

11.                   From the rival contentions of learned counsel for the parties and the evidence on record in terms of affidavits of the complainants as well as independent witnesses, it is established that the deceased patient Smt. Tara was taken to OP No.1 Hospital on 31.3.1999 under pregnancy and both OPs No.1 and 2 conducted abortion on her on the said date. It is further proved on record that after operation, when the condition of the deceased patient started deteriorating due to bleeding post abortion, they put their hands off and the husband of the deceased patient under compelling circumstances was forced to take his wife to Safdarjang Hospital, New Delhi where she died itself on the date of admission i.e. 1.4.1999. Thus, in our view and as  rightly held by the learned District Forum, OPs are deficient in providing medical services to the deceased Smt. Tara which ultimately resulted into her death and for which the learned District Forum has adequately compensated the complainants.

12.                   A perusal of advertisement (Ex.C10) published by OPs in the newspaper ‘Arawali Times’ dated 13.11.1998 further makes it clear that the same was totally misleading as in that advertisement it was recorded that OP No.1 is competent to give treatment of all kind of diseases/problems. The said advertisement further had a ‘Note’ stating that there is a special arrangement of a lady doctor and free opinion on family planning is also provided in OP No.1 Hospital. Thus, we are in consonance with the view held by the learned District Forum that OPs were not at all qualified for the job of abortion and the advertisement published by them was totally vague and misleading just to allure the general public at large, which clearly amounted to unfair trade practice on the part of OPs. It is further noticed that on one hand, OP No.1 (Dr. Chunni Lal) has shown to be 90% disable and unable to perform such operations but on the other hand, this plea of OP is belied by their own advertisement which says that all kind of treatment is given at OP No.1 Hospital. Thus, it is proved that the OPs have also indulged in unfair trade practice by publishing such misleading advertisement. At this stage, it will be not out of place to mention that OP No.2 did not appear before the learned District Forum and even did not chose to file any appeal before this Commission against the impugned order. Thus, in the absence of any appeal from the side of OP No.2, the impugned order attained finality against OP No.2.

13.                   In view of the foregoing discussion, we find no merit in the appeal and the same is dismissed with no orders as to costs.

14.                   Copies of this order be sent to the parties free of charge.

Pronounced.

23^rd July 2010.

Sd/-

 [JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MRS. NEENA SANDHU]

MEMBER

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