Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.05.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite parties to pay Rs. 12,00,000/- ( Rs. Twelve Lakh only ) as compensation.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that his son namely Anil Kumar Kushwaha aged about 24 Years was suffering from heart disease at the relevant time for the treatment of which he was admitted on 20.01.2007 under treatment of opposite party no. 2 who was incharge of institute at that time.
Anil Kumar Kushwaha was examined by opposite party no. 2 who also prescribed medicine and advised for heart surgery. Opposite party no. 2 directed the complainant to deposit Rs. 92,500/- vide annexure – 1 series.
It is further case of the complainant that complainant was very poor person his name was in BPL list and as such due to effort of local MLA Rs. 90,000/- was sanctioned as grant by collector Gopalganj which was paid directly to opposite party no. 2 through cheque.
The complainant has further asserted that after receiving the aforesaid cheque i.e. money , opposite party no. 2 has fixed 20.03.2007 as the date of operation which was later on extended to 27.03.2007.
The further case of the complainant is that as a precautionary measure the patient had to remain in Air Condition ward for one month prior to operation but due to callous and negligent act of opposite party no. 2 he was discharged and shifted to general ward after one week.
It is also the case of complainant that prior to and after operation there has been total negligence as well as carelessness on the part of opposite party no. 2 resulting into death of complainant’s son on 09.04.2007 as will appear from annexure – 2.
It has been further asserted that due to death of his son the complainant had to suffer monetary loss and opposite parties are liable to pay for their negligence and carelessness.
On behalf of opposite parties a written statement has been filed stating therein that earlier the complainant had filed a case bearing case no. 37/07 before the District Consumer Forum Gopalganj on the similar ground but later on he has filed this case in this Forum after withdrawal was allowed vide order dated 17.08.2007 by Gopalganj District Consumer Forum.
It is further case of the opposite parties that Indira Gandhi Institute of Cardiology is owned and run by the state Government and each and every thing have been prescribed according to which the patient are admitted examined and necessary instruction are being given.
Opposite party no. 2 has further stated in his written statement that Anil Kumar Kushwaha was admitted and examined accordingly. Whatever be the amount taken from the patient under any package scheme is directly remitted to concerned company and institute has no concern with this amount. The whole service is free.
It has been also stated that according to routine work of institute the date of operation is being fixed and that also after final examination of the patient and finding fit in all respect the operation is done. The date of operation is liable to shifted to another date in interest of patient.
It has been also stated that patient are kept in I.C.U. which is air conditioned till condition of the patient becomes stable and once the patient becomes stable he is shifted to general ward and made mobile as a part of post operation rehabilitation program in the best interest of the patient.
The opposite party no. 2 has denied all allegation made by the complainant and stated that the son of the complainant was very sick right from beginning and therefore the operation was postponed but unfortunately his condition detoriated after two weeks and inspit of best efforts of all doctors of institute the patient expired, hence the allegation of negligence and callousness are false, baseless and imaginary and hence denied.
On behalf of complainant a rejoinder to written statement filed by opposite parties have been filed stating therein that Rs. 90,000/- was sanctioned by the collector Gopalganj and it was directly paid to opposite party no. 2.
On behalf of complainant an affidavit have been filed which have been affidavited on 15.10.2009 stating therein that his son was admitted in the institute under care of opposite party no. 2 on 20.01.2007 and after receiving the cheque of Rs. 90,000/- which was sanctioned by collector of Gopalganj the date of operation of his son was fixed on 20.03.2007 which was later on extended to 27.03.2007.
In Para – 10 of the aforesaid affidavit it has been stated that by way of caution the patient who is to be operated is kept for one month in air condition prior to operation and after operation he is kept in air condition for one month but his son was shifted to general ward after one week of operation.
In this case the Forum has sought medical opinion from the medical board and the medical board consisted of four doctors have given the medical opinion which is as follows: “ Mr. Anil Kumar, 24/M, S/o Sri Binda Prasad Kushwaha ( complainant) was a case of RHD C MS C clot in LA C pliable cusp was admitted on 07.03.2007 and was operated upon on 27.03.2007 at IGIC, PMCH, Patna. The patient expired on 09.04.2007 at 12:10 PM at IGIC during the post operative recovery.
The complainant’s statement – “ PATIENT HAS TO REMAIN IN AIR CINDITIONED WARD FOR ONE MONTH PRIOR TO OPERATION ” – is not true.
Besides, the post operative negligence and carelessness were not apparent.”
Again a supplementary affidavit on behalf of the complainant has been filed repeating the same allegation and stating therein that opposite parties did not act in accordance with medical standards and had totally violated the provision of Indian Medical Council Regulation 2002 and the code of medical ethics.
With this supplementary affidavit, an affidavit of one Ramesh Kumar Kushwaha has been annexed as annexure e- 4 stating therein that at the relevant time he ( Ramesh Kumar Kushwaha ) was patient in Indira Gandhi Institute of Cardiology and after the surgery the complainant’s son complaint to the doctor that he is feeling not well but the doctor did not paid heed. In this affidavit it has been also stated that complainant had met opposite party no. 2 several times and requested him to take appropriate steps but he totally ignored the request of the complainant.
It further appears that an application was also filed by complainant stating therein that during the procedure of instant complaint the medical board at Patna without giving full and satisfactory opportunity to the complainant to present his case and without complying the provision of Bihar Health Manual had made inquiry of the matter and submitted the report before this Forum vide letter no. 8705 dated 18.10.2010.
It appears that the complainant has challenged the expert opinion of medical board on the ground that it is not constituted according to the provision of Bihar Health Manual and this medical report has been given without complying the provision of medical justice.
We have narrated the case of respective parties as well as the facts asserted by the parties in their affidavit, written statement, supplementary affidavit etc. in order to record our finding.
Heard the ld. Counsel for the parties.
From careful personal of complaint petition it appears that the only allegation of the complainant is that as precautionary measure patient ( Anil Kumar Kushwaha ) had to remain in air conditionward for one month prior to operation but due to callous and negligence act of opposite party no. 2 he (son of complainant ) was discharged and shifted to general ward only after one week. In Para – 10 of complaint petition it has been asserted that due to total negligence as well as carelessness of opposite party no. 2 his son died on 09.04.2007.
It is needless to say that the complainant has denied all the aforesaid allegation.
The medical board did not found the contention of the complainant about keeping of the patient in air condition prior to operation and after the operation and stated as follows: “ The complainant’s statement – “ PATIENT HAS TO REMAIN IN AIR CINDITIONED WARD FOR ONE MONTH PRIOR TO OPERATION ” – is not true. ”
The complainant has also asserted that opposite party no. 2 was utmost negligent and callous because when the son of the complainant complaint about some difficulties then opposite party no. 2 did not pay proper care due to which his con died. An affidavit sworn by Ramesh Kumar Kushwaha on 24.04.2012 had been filed in this case by way of supplementary affidavit.
In this regard we are of the opinion that this fact was not brought on record at the time of filling of this complaint petition because this complaint was filed in 2007 and this supplementary affidavit has been filed in 2012 after laps of 4 years.
Apart from it, from careful perusal of the aforesaid affidavit of Ramesh Kumar Kushwaha as well as supplementary affidavit it is not clear that why Ramesh Kumar Kushwaha has not stated this fact at the time of filing of this complaint petition of 2007.
In our opinion the main allegation is that son was the patient had to remain in air condition prior to operation but due to callous attitude the patient was shifted to general ward after one week.
At the cost of repetition it is stated that this proposition of treatment has not been found in favour by the expert opinion of medical board against which there is no cogent evidence have been filed by the complainant.
It is needless to say that an objection to the aforesaid medical board opinion has been filed by the complainant on the ground that the medical board has not allowed satisfactory opportunity and the report of medical board violated the provision of Indian medical counsel regulation of 2002 and code of medical ethics.
In our opinion these are vague objections because the complainant has not stated that what provision of the Indian Medical council regulation 2002 and code of medical ethics has been violated.
In our opinion the case under the consumer protection act has to be decided by way of summary trial and we cannot allow the parties to adduce evidence with respect to every fact as will appear in civil suit because if we allow objection and evidence like civil suit then the purpose of consumer protection act will be spoiled.
In absence of any specific and cogent material against the expert opinion of medical board we reject the objection of complainant and accept the expert opinion of medical board which is against the complainant’s version.
It has also asserted by the complainant that the sanctioned amount of Rs. 90,000/- was given to opposite party no. 2 while opposite party no. 2 has stated that such amount is directly remitted to the company who sponsored such things and institute get nothing because the service of the institute is free. There is no evidence that Rs. 90,000/- deposited by complainant had been credited in the personal Khata of opposite party no. 2.
We are conscious of the fact that this case relates to death of a young person of 24 years which is unfortunate.
We appreciate the feeling and pain of complainant for his son but we cannot decide this case in the fit of sentiments.
We have given entire details in the forgoing paragraphs and we hereby find and hold that there is cogent evidence to show any specific negligence and carelessness on behalf of opposite party no. 2 and we are also bound to accept the opinion of medical board which does not support the case of the complainant.
We find and hold that there is no deficiency on the part of opposite party no. 2 and as such this case stands dismissed but without costs.
Member President
