Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This appeal is directed against the order dated 20/02/2008 passed in consumer complaint No.501/2006 Shashikant Hanmant Birajdar & Ors. V/s. Jain Hospital & Jain Institute of Digestive Diseases & Ors. passed by District Consumer Disputes Redressal Forum, Solapur (‘the Forum’ in short). This is a case pertaining to alleged medical negligence at the hands of opponent Nos.1&2 vis-à-vis deficiency in service on their part. Opponent No.3-The Divisional Manager of the Insurance Company is impleaded as opponent. Said Insurance Company represented by said Divisional Manager covered the risk of opponent No.2-Dr.Manoj Jain.
Undisputed facts are that Late Anil hashikant Birajdar consulted opponent No.2-Dr.Manoj Jain for his complaint and subsequently, he was advised for Laparoscopy for removal of Gall Bladder stones. Late Anil Birajdar was admitted in opponent No.1-Hospital run by opponent No.2-Dr.Manoj Jain. On 04/07/2006 Dr.Dedia was the Anesthetist attending said operation. It is alleged by the complainant that after operation was started on 05/07/2006 at 1.00 p.m., after about 20 minutes, electricity went off and the alternate arrangement of power supply through generator failed. Some 15-20 minutes thereafter, opponent No.2-Dr.Manoj Jain informed that Late Anil Birajdar was serious and he should be removed to Ashwini Hospital. Late Anil Birajdar was accordingly removed to Ashwini Hospital where he was reported dead. The dead body was taken back to opponent No.1-hospital where opponent No.2-Dr.Manoj Jain issued Death Certificate. Alleging deficiency in service on the part of opponent Nos.1&2, consumer complaint was filed. It came to be dismissed and feeling aggrieved thereby, org. complainants have preferred this appeal.
We heard Mr.Anand Kulkarni, Advocate for the appellants and Mr.Arjun Patil, Advocate for the respondents.
Grievance is made about not giving appropriate opportunity to the appellants/complainants to lead expert evidence and in spite of that holding that no expert evidence is given by the complainants, the Forum dismissed the consumer complaint. We have called the Record and Proceedings also to satisfy ourselves about correctness of the statement made. It could be seen from the Order-sheet that on 04/08/2007 an application to refer the papers for expert evidence was moved on behalf of the complainants and say of the opponents was called on the said application. However, further Roznamas showed that said application remained undecided and no order was passed on it. However, after both the parties led their evidence and affidavits and after taking several dates for arguments, arguments were ultimately heard and consumer complaint was decided as per the impugned order.
In its written version, opponent No.2-Dr.Manoj Jain suggested that bubbles might have developed when Laparoscopy operation was going on and that might have caused further complications resulting into death of Late Anil Birajdar. However, there is no evidence led to justify such version given in the written version. Affidavit of Anesthetist Dr.Dedia is not specific on that point. Certain literatures i.e. Articles published in Canadian Journal of Anesthesia dated June 23, 2002, copy of which perhaps obtained on Internet is relied upon, but unless factual situation is well established, said literature is of no use. Same is the case in respect of other literature coming from medical journals or other text books. Unless their relevancy is established, said material is of no use.
Further, the case papers of Late Anil Birajdar got produced on record at the instance of complainants, they were not at all considered while passing the impugned order. In fact, the Forum ought to have taken care to verify from the parties as to whether those papers are undisputed documents and if not whether they are properly tendered in evidence as per provisions of Section 13(4) of Consumer Protection Act, 1986 or not. As earlier observed, request of complainants, to send papers for expert opinion remained undecided. In fact referring to the decision of the Apex Court in the case of V. Kishan Rao V/s. Nikhil Super Speciality Hospital & Anr. (dtd.08/03/2010), 2010 INDLAW 364, it is no more required to give further directions in the matter as per decision of the Apex Court in the case of Martin F. D’Souza V/s. Mohd. Ishfaq, 2009 INDLAW 174, to refer papers for expert opinion, but it is for the complainants to lead appropriate expert evidence to establish their case. Since, it is now alleged that such proper opportunity was not given to them and the Forum solely relied upon the factor that expert opinion on behalf of complainants is not tendered, we find it just and proper to remand back the matter, as requested, so that both the parties would get appropriate opportunity to lead their evidence and thereupon, the Forum can settle the dispute according to the law. We hold accordingly and pass the following order :-
-: ORDER :-
1. Appeal is allowed. The impugned order dated 20/02/2008 is set aside.
2. Complaint No.501/2006 is remitted back to the Forum in the light of the observations made in the body of the order. The Forum shall give an opportunity to both the parties to lead their evidence in terms of Section 13(4) of the Consumer Protection Act, 1986 and thereafter on hearing them, settle the dispute according to the law.
3. Hearing of the case is expedited.
4. In the given circumstances, both the parties to bear their own cost.
5. Both the parties shall appear in the Forum on 01/12/2010.
6. Record & Proceeding be sent back to the Forum below.
7. Copies of the order be furnished to the parties.
Pronounced
Dated 21st October 2010.
