RESERVED

 State Consumer Dispute Redressal Commission,

Uttar Pradesh, Lucknow.

Appeal No.63  of 2011

New India Assurance Co. Ltd.                            

 …..….Appellants

Versus

Gyanendra Kumar Tyagi & Others.                      

……Respondents

And

Appeal No.10  of 2011

Dr R.K.Poddar  & Others.                                    

 …..….Appellants

Versus

Gyanendra Kumar Tyagi & Others.                            

……Respondents

 Present:-

1-    Hon’ble  Mr. Sanjai Kumar, Presiding Member

2-  Hon’ble  Mr. Mahesh Chand,  Member

In Appeal No.10  of 2011

Shri Ashish Kumar Srivastav, Learned Counsel for the Appellant.

Shri Pratul Shrivastav, Learned Counsel for the  Respondent No.1 & 2

None  for the  Respondent No. 3, 4, 5 & 6

In Appeal No.63  of 2011

None  for the the Appellants.

Shri Pratul Shrivastav, Learned Counsel for the  Respondent No.1 & 2.

None  for the the Respondent No.3

Shri Ashish Kumar Srivastav, Learned Counsel for None  for the  Respondent No. 4

Date:  16-2-2018       

Judgment

Shri Mahesh Chand, Member- These are appeals under section 15 of Consumer Protection Act, 1986, against the judgement and order dated 09.12.2010 passed by the District Consumer Dispute Redressal Forum, Gonda, in Complaint No 85 of 1995, Gyanendra Kumar Tyagi and others  Vs Dr R.K. Poddar & Others. The Appeal No 10 of 2011 has been filed to quash the impugned order and dismiss the complaint while the Appeal No 63 of 2011 has also been filed for quashing the impugned order with costs. Since both the appeals are arising out of the same Judgment and order dated 09.12.2010, hence these are being decided simultaneously. The Appeal No 63 of 2011 will be the leading case. The impugned order is as follows:-

'' विपक्षी नं0 1 व 2 को संयुक्‍त रूप से आदेशित किया जाता है कि वह परिवादीगण को 300,000/- रूपये (तीन लाख रूपये) बतौर मुआवजा परिवादीगण को अदा करें, क्‍योंकि इन दोनों डॉक्‍टरों का नर्सिंग होम विपक्षी नं0 5 दि न्‍यू इंडिया एश्‍योरेंस कंपनी द्वारा बीमित है इसलिए बीमा की रकम विपक्षी नं0 5 बीमा कम्‍पनी द्वारा देय होगी परन्‍तु वसूली में कोई अड़चन आने पर विपक्षी नं0 1 व 2 से उक्‍त रकम की वसूली होगी।

गाजियाबाद पैथोलोजी लैबोरेट्री एण्‍ड ब्‍लड बैंक डासना रोड गाजियाबाद के डाक्‍टर केशरवानी को आदेशित किया जाता है कि परिवादी को 125000/-रूपये (एक लाख पच्‍चीस हजार रूपये) बतौर हर्जाना मुआवजा अदा करे। परिवादीगण बतौर वाद व्‍यय 6000/- रूपये (छ: हजार रूपये) भी पाने का अधिकारी होगा जो विपक्षी नं0 1, 2 व 3 में से प्रत्‍येक दो दो हजार रूपये बतौर वाद व्‍यय परिवादीगण को अदा करेगा। यह समस्‍त अ‍दायगी इस निर्णय के दो माह के अन्‍दर की जाए। ''

Being  aggrieved with the above impugned order  dated 09.12.2010,  these appeals have been filed.   Briefly the  facts of the case   are  that  complainant had admitted his wife  in Poddar Nursing Home  for treatment  of some problem in her Uterus on dated 22.9.1993. The Respondent No  3 and 4/Opposite Parties No 1 & 2  sent  Complainants/ Respondent No 1 and 2 to Respondent No  5  for  blood test  of Smt.  Savitri Devi. The Respondent No 5 tested the blood group of Smt. Savitri Devi and reported her blood group to be O+ve and accordingly supplied 4 bottles of Blood of O+ve group. Smt.  Savitri Devi was operated on 24 September 1993 at the Nursing Home of Dr RK Poddar. Smt. Savitri Devi was discharged on 1st  October 1993 from the nursing home. According to the complainants after reaching   home Smt. Savitri Devi started feeling of itching in her skin. When her  condition deteriorated very much, She approached Respondent No  3 and 4/Opposite Parties No 1 & 2 but they did not respond satisfactorily  and sent back  her after minor treatment.  With increasing ailment, the complainants   admitted Smt. Savitri Devi in Sarvodaya Hospital.  When the condition of Smt. Savitri Devi became very serious,  she was admitted in All India Institute of Medical Sciences, New Delhi on dated 11th December 1993. After examining her previous treatment papers and the patient, the doctors of AIIMS, diagnosed Smt.  Savitri Devi suffering from jaundice. According to the complainants, they again got re-examined the blood group of Smt. Savitri Devi. Her blood group was found to be B+ve . According to the complainants  Smt.  Savitri Devi got this disease of jaundice due to transfusion of blood of wrong group and ultimately  succumbed   to the disease. According to the complainants Smt. Savitri Devi  died because of the  carelessness and medical negligence on the part of Respondent No  3 and 4/Opposite Parties No 1 & 2.  They filed the complaint No 85 of 1994  before District Consumer Disputes Redressal Forum, Ghaziabad  where in total compensation of Rs 425,000/- has been claimed.  The district forum issued notices to all concerned.  The parties concerned filed their written statements and evidences.  After hearing the parties and perusing their evidences,  the learned District Forum passed the  above stated impugned order dated 9th December 2010.

                  Being aggrieved with the impugned order  dated 9 December 2010, these appeals have been filled. In appeal No 63 of 2010,  the  impugned order has been  assailed on the ground that  the learned district forum has  erred  in wrongly believing the opinion of AIIMS regarding the blood group of Smt. Savitri Devi.  It has not been confirmed by an independent examination report. It has also been  alleged  in the grounds of appeal that the impugned order has been passed by the district forum on  extraneous consideration  and without application of mind and proper appreciation of evidences on the  file. It has also been  alleged in the grounds of appeal that it is not possible to survive for any person for a long period of 64 to  67 days after wrong blood group transfusion. It has also been  stated in the grounds of appeal that after discharge from Dr Poddar’s  Nursing Home,  Smt Savitri Devi was treated at Sarvodaya Hospital and AIIMS, New Delhi.  They are also necessary party and the entire complaint is bad for non joinder of necessary parties. In the grounds of appeal, it has also been stated that blood sample was received from Dr. Saroj Agarwal- respondent No.  6 and accordingly, after examination blood group of   Savitri Devi was found to be O+ve.  No 3rd opinion has also been sought  regarding said AIIMS’s  blood group report. Thus the learned district forum has committed manifest error, ignoring the above facts  and  passed the impugned judgement and order. On the above grounds the  appellant insurance company has challenged the order and requested to set aside  it.

Similarly in the Appeal No 10 of 2011,   the appellants have challenged impugned order  on the grounds that the appellants have not committed any deficiency in service In the appeal it has been  alleged  that the  learned  District forum has erred in  relying upon  a handwritten slip pertaining to blood group which shows the blood group of  Savitri Devi  as B+ve  .But this slip  does not  bear any signature of any official or doctor of AIIMS. It does not  show any authenticity  while the whole case of the complainant depends upon the report of blood group  of deceased  Savitri Devi.  The Blood Group Report should have been authentic.  Relying upon this  slip regarding the blood group of  Savitri Devi    as B+ve,  is erroneous. There is no medical expert opinion on the  file  that the The wrong blood group was  transfused to the deceased Savitri Devi.  There is no medical opinion of the AIIMS on the file that the blood of wrong group transfused which   caused the decease of  Savitri Devi.   The appellants contention  is worth consideration that if the wrong blood was transfused to  Savitri Devi it would have immediate effect on the body of the patient and when she came to consult doctors  on 4th October 2010, she  should have told  them about the problem of itching  etc.  There could be other reasons of Jaundice. No other  allegation of  medical negligence and deficiency in service  has been made against the  treating doctors except the allegation of transfusion of   blood of wrong group.  The blood group was cross matched by the doctors of supplier blood  bank. The concerned doctors have certified the cross matching of blood group  which cannot be  assailed  without any Solid evidence. Blood group slip on a simple paper without any  authenticity cannot be relied upon. The learned district forum has  erred in  relying upon the said  slip and arriving at the conclusion that the wrong group blood  transfusion by the operating doctors to Savitri Devi  ultimately,  caused her death. The appellants have  weight in their appeals. The Impugned order deserves to be  set aside

                                                      Order

        The appeals are allowed. Impugned order dated 09.12.2010 is set aside. The complaint is also dismissed. The  parties will bear their own cost of litigation at  appellate stage.  Let the copies  of  this order be issued to all concerned as per rules.

     (Sanjai Kumar)                                                  (Mahesh Chand)

     Presiding Member                                                             Member

Laxman steno,

  court-4