F.A. 1750/2007   against C.C. 143/2006,  Dist. Forum, Karimnagar.

Between:

1)  Dr. G. Chandra Shekar

S/o.  G. Simhachalam

Age: 34 years, Medical Practitioner

M/s.  Kaveri Medical Emergency

Diabetic & Diagnostic Centre

Presently Prop. of  Shanmukha Hospitals

Mukurampura, Karimnagar.

2)  Kaveri Medical  Emergency

Diabetic & Diagnostic Centre

Previously Rep. by  Dr. G. Chandra Sekhar

Karimnagar.                                                ***                           Appellants/

          .                                                                                       O.Ps 1 & 2.

                                                                   And

1)  Kotte Ramulu, S/o. Late  Narasaiah

Age: 41 years, Cooli.

2)  Smt. Kotte Laxmi, W/o. Ramulu

Age: 39 years,  Household.

Both are R/o. Manakondur (V&M)

Karimnagar Dist.                                         ***                         Respondents/

                                                                                                Complainants

Counsel for the Appellants:                        M/s. MWR Jayakar.

Counsel for the Respondent:                       Smt. CH. Latha Kumari.

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

&

SMT. M. SHREESHA, MEMBER

FRIDAY, THIS THE NINETH DAY OF APRIL TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

1)                 This is an appeal preferred by the opposite parties  against the order of the Dist. Forum directing them to pay Rs. 1,92,000/-   together with interest and costs.

2)                The case of the complainants  in brief is that complainant No.  1 & 2 are parents of deceased Satish.   When   Satish was suffering from jaundice they took him to Kaveri Hospital, Karimnagar.   Appellant No. 1  the doctor after examining him  on 30.5.2005 prescribed medicines, and advised to visit him after 15 days.   As there was no improvement in his condition despite usage of medicines, again he visited him  on 5.11.2005.    After investigations by him he was asked to admit immediately.   He paid an advance of Rs. 5,000/-, and admitted  in the hospital.   Neither the doctors nor any  of the staff had attended on him.   From 3.00 p.m.  to 11.00 in the midnight none had attended on him.    He died at about 12.25 a.m.    Their  signatures (of the parents)  were taken on some papers.   They did not know anything except subscribing their signatures.   He was administered with prohibited drugs and antibiotics.    Since he was not diagnosed properly nor was treated,  it resulted in death of their son.    A report was given to the police.    The police conducted inquest.   Post-mortem examination was conducted at Government Headquarter hospital, Karimnagar.    He was earning Rs. 3,000/- per month.    They lost source of income etc. They were entitled to compensation of Rs. 4, 50,000/- besides costs. 

3)                The appellant was set-exparte  on the ground that they did not respond to the newspaper publication issued in  ‘Praja Shakthi’  when the notices issued by way of registered post  were returned  with endorsement  “ addressee left without intimation”. 

4)                The complainants in proof of their case filed the affidavit evidence of  first complainant and that of  one  Kotta Laxman and got Exs. A1 to  A7 marked. 

5)                The Dist. Forum after considering the evidence placed on record allowed the complaint in part directing the appellants to pay Rs. 1,92,000/- with interest  @ 9% p.a., together with  costs of Rs. 1,000/-. 

6)                The appellants  preferred the appeal after coming to know that pursuant to the above  said order,  P.P. No. 52/2007 was filed for realization of amount  and that warrants were issued against them.   They obtained certified copy  and preferred the appeal. 

7)                The learned counsel for the appellants apart from  arguing the matter on merits contended that  no notice was issued prior to filing of the complaint.     It is not known  how the  complainants could give such an address and  that it is the last known address,   equally so with the Dist. Forum assuming that it is his address.  It could have ordered notice in a newspaper which is having a large circulation, at any rate, not in Prajashakthi., an obscure  paper.    They could not have  taken cognizance of notice  published in such a paper.     

8)                No doubt the complainant ought to have verified the address  of the appellant and the Dist. Forum  must have insisted the complainant to find out the correct address before setting them ex-parte. 

9)                 The appellants filed documents in the appeal viz.,   Forensic report, partnership deed, retirement deed, final opinion given by the government doctor etc. which should be considered in order to find out  whether there was medical negligence or professional negligence on their part in treating the deceased.    Apart from it,  there is  a change in the constitution of   partnership firm pertaining to  appellant No. 2  Diagnostic Centre, which could be seen from   Partnership Deed  Dt. 6.11.2004  and  Deed of Retirement Dt.  23.12.2006  filed in appeal.    We may also state herein  that if suits are filed before the Civil Court  it would necessarily direct the plaintiff  to file  registration extracts obtained from the  Registrar of Firms to show the names of partners in case of  firm etc.    Since under the Consumer  Protection Act,   

even a non-registered firm  could also be sued, the parties are filing the cases without verifying whether  in fact the parties are partners to the firm.  No doubt the rules of natural justice  have to be followed.  It does not mean that the parties could file  the complaints  against any  person  whom so like without  proving the fundamental fact  that they are partners and they are liable for  any negligence that is attributed to them.    One can understand, if  the case is filed against a person in his individual capacity,  but when it comes to a partnership  firm,  the parties impleaded should be partners of the firm.  If they deny, it is incumbent upon the complainant  to prove the said fact.    We do not intend to go into those facts, since, we are inclined to remand the matter to  Dist. Forum for fresh adjudication. 

10)               The case of the complainants is that  deceased Satish was suffering from jaundice and  admitted   in the appellants hospital and administered  prohibited drugs and antibiotics  which led to his death.    The appellants allege that  they  have  prescribed  Silimarun 70 mg anti hepatitis drug and  Alpazym  syrup  Curox 400 mg to contain infection with a direction to use   Silimarun 70 mg an anti hepatitis drug  besides some  other drugs.   The deceased  Satish did not take the medicines as prescribed but taken treatment from quacks in the village, therefore he succumbed to death.    In the light of defence, necessarily  the complainants  had to prove  that the treatment given by the appellants  were not in correct lines which led to his death.    These are all questions to be considered.    We do not intend to give any opinion  about it. 

11)              In cases of this nature the problem would be  that unless the complainant proves   medical negligence  as per the decision of Supreme Court  in Martin F.D’ Souza Vs. Mohd. Ishfaq  reported in I (2009) CPJ 32 (SC)    it cannot pass orders opining that  it constitutes  medical negligence  and that doctors  were liable to pay compensation.    We are satisfied  that notice was not served on the appellants.  In the light of  the plea,  that the treatment given by the appellants was not an approved treatment  which is undoubtedly  unsubstantiated by way of medical literature  or by examining  medical expert, we have to necessarily  set-aside the  order  and direct the Dist. Forum to conduct fresh enquiry.    No doubt already sufficient delay  was caused, however, that should not be a ground to confirm or set-aside the order. 

12)               In the result the appeal is allowed and the order of the Dist. Forum is set-aside.   The matter is remanded to Dist. Forum for denova enquiry.  Both parties are directed to appear before the Dist. Forum on 13.5.2010 without insisting  on fresh notice.    The Dist. Forum in its turn  direct the opposite parties to file their written version, and then  direct the parties to lead evidence.   It has to pronounce the orders  as per law.    Since this is an old matter the Dist. Forum is directed to dispose of the matter  within three months from the date of receipt of records. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

   Dt.    09. 04.  2010.  

*pnr

“UP LOAD – O.K.”