KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.543/2014

JUDGEMENT DATED: 08.11.2022

(Against the Order in C.C.No.762/2013 of CDRF, Ernakulam)

PRESENT:

APPELLANT:

(by Adv. Kiran Gopinath)

Vs.

RESPONDENT:

(by Adv. Tom Joseph)

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The opposite party in C.C.No.762/2013 of the Consumer Disputes Redressal Forum, Ernakulam (in short the District Forum) has filed the appeal against the order passed by the District Forum by which they were directed to pay Rs.3,000/-(Rupees Three Thousand) to the complainant, the treatment expenses incurred by her and Rs.50,000/-(Rupees Fifty Thousand) to her by way of compensation.

          2.       The averments contained in the complaint in brief are as follows:  The complainant got pregnant in March 2013 and she consulted Dr. Santha Thomas at Vathiyayath Hospital, Perumbavoor.  At the insistence of the Doctor, on 16.04.2013, the complainant approached the opposite party for scan and obtained a report.  She paid Rs.750/-(Rupees Seven Hundred and Fifty) towards the same.  The complainant again consulted Dr. Santha Thomas with the scan report.  The doctor perused the report and advised the complainant for abortion of the twin foetus, since as per the scan report, she is suffering from chronic kidney disease.  The doctor prescribed medicines for abortion and also advised the complainant to go for treatment for renal failure.  Abortion has been confirmed by Dr. Santha Thomas on 03.05.2013.  At that juncture, the husband of Dr. Santha Thomas an anesthetist by profession issued a letter to the complainant to consult Dr. Vijayan a Urologist working at Specialists Hospital, Ernakulam.  On the very next day, the complainant consulted Dr. Vijayan.  At the outset, the complainant was directed to obtain urine test and X-ray reports.  Since the result was normal, the complainant was advised to obtain a CT scan.  After the CT scan, the doctor revealed that the complainant is free from any kidney disease.  The complainant approached the opposite party to get the grievances redressed to which they turned deaf ear.  The complainant had to suffer a lot of inconvenience and mental agony due to the negligence and laches on the part of the opposite party.  Thus the complainant is before us seeking direction against the opposite party to pay a total compensation of Rs.2,13,250/-(Rupees Two Lakhs Thirteen Thousand and Two Fifty).

          3.       The opposite party filed version raising the following contentions: Dr. Santha Thomas referred the case of complainant to the opposite party on 16.04.2013.  The complainant was subjected to ultra sound scan by Dr. Rijo Mathew.  A report in the matter was issued duly signed by Dr. Rijo Mathew.  After issuance of the report, the complainant approached one Ms Sreekumari, a clerical staff requesting for a copy of the scanned image.  Though there is no general practice for providing scanned image copies, at the behest of the complainant, a copy of the scanned image was given unofficially.  The entire case has now been built up on the unwitting mistake made by a staff in providing the copy of the scanned image on the reverse of a used paper.  The opposite party earlier received a communication dated 28.07.2013 issued from Consumer Protection Kerala.  On the assumption that the Consumer Protection, Kerala had legal and statutory authority and on their suggestion alone it is understood that the staff in question who had taken a copy of the scanned image had given a letter dated 17.09.2013 pointing out the inadvertent mistake committed by her and pleading that no further action should be followed on the same.  The entire case built up by the complainant that either the complainant or other medical practitioners were misled by the entries on the reverse side of the scanned image paper is totally baseless.  The complainant is not entitled to get any amount from the opposite party.  The complaint is liable to be dismissed.

          4.       No oral evidence was adduced by the complainant and Exhibits A1 to A12 were marked on her side.  DW1 and DW2 were examined and Exhibits B1 to B6 were marked on the side of the opposite party.

          5.       After considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite party has filed the present appeal.

          6.       Heard both sides.  Perused the records.

          7.       Parties are referred to according to their status/rank mentioned in the complaint.

          8.       There is no dispute to the fact that on 16.04.2013 the complainantconsulted Dr. Santha Thomas, a gynecologist working in Vathiyayath Hospital, Perumbavoor and as per her direction the complainant approached the opposite party to avail an USG (Ultra Sonography) scan evident from Exhibit P4 scan referral form issued by Dr. Santha Thomas.  It is also not in dispute that on the same day the complainant was subjected to USG scan by Dr. Rijo Mathew, the Chief Consultant Radiologist of the opposite party.  According to the complainant as per Exhibit A1 scan report issued by the opposite party the complainant was suffering from chronic kidney disease.  In order to take treatment for her kidneys she had to abort the twin foetus and further she had to go for the treatment of the kidneys.  It is stated by the complainant that during treatment she came to know that she is free from kidney ailment and by the time she had to suffer mental agony inconvenience and financial loss.  According to the opposite party after the issuance of the scan report, the husband of the complainant approached one Ms. Sreekumari, a clerical staff of the opposite party requesting to issue a copy of the scanned image.  Though there was no general practice for providing scanned image copy, at the insistence of the husband of the complainant the said staff issued an unofficial copy of the scanned image on the reverse side of a used paper, in which the scan report of another patient was recorded.  According to the opposite party, the reverse side of the scanned image was neither attached to the scanned image nor signed by the Doctor who issued the scan report.

          9.       We have gone through Exhibit A1.  The first page of the scan report is regarding the Pelvis of the complainant.  It is in the letter head of the opposite party signed by Dr. Rijo Mathew.  The reverse side of the said paper is blank.  The second paper is also in the letter head of the opposite party.  It does not bear the signature of the Doctor.  The said paper is regarding the result of Ultra Sound Scan of abdomen and KUV (Spleen, Kidneys, Urinary Bladder, etc.).  It does not contain the name of the patient/complainant and it was not signed by the Doctor.  On the reverse side of that paper the scanned image regarding the scanning of the Pelvis of the complainant is printed.  It does not contain the signature of the Doctor.

          10.     Admittedly, the second paper and its reverse side were issued by the staff of the opposite party who was examined as DW2.  DW2 deposed that on the persistent requests of the husband of the complainant she issued ultra sound scan image of the complainant on the reverse side of a waste paper, which contained the result of another patient.  DW2 stated in her proof affidavit that as per the direction of the opposite party she along with her brother visited the house of the complainant and explained the real facts and as per the demand of the complainant she had issued Exhibit A6 apology letter.  But during the evidence before the Forum she stated that she had issued Exhibit A6 at the office of the husband of the complainant.  The District Forum found that the versions of DW2 would not go together.  DW2 expressed her unconditional apology towards the complainant and her husband for the negligence and laches on her part in taking the ultra sound scan image of the complainant on the reverse sider of another patient’s scan report of the kidneys and issued to the complainant.

          11.     The counsel for the appellant submitted that on a perusal of Exhibit A1 it can be seen that no reasonable person, much less a medical practitioner could be misled into believing that the notings on the reverse side of the scanned image pertains to the complainant or even form part of the report dated 16.04.2013, duly signed by the Doctor.  He pointed out that the notings on the reverse side of the signed image regarding the scanning of the Pelvis does not contain the name of the complainant and it was not signed by the Doctor.  Therefore it is difficult to believe that the referring Doctor had acted upon the writings on a scrap of paper.  It is true that the notings on the reverse side of the paper where the scanned image is taken does not contain the name of the complainant ant it was not signed by the Doctor.  But as observed by the District Forum Exhibit P1 prima facie goes to show that it is part and parcel of the scan report and ultra sound scan image of the complainant.  Even the gynecologist who treated the complainant was under the impression that the second page of Exhibit A1 is regarding the scanning of the complainant which prompted her to advice the complainant to go for better management of kidney ailments.  In furtherance of Exhibit A1 report and as per the advice of the treating doctor the complainant had to consult the Doctor at the Specialist Hospital, Ernakulam for management of kidney ailment, evidenced by Exhibit A3, A9 to A12.  Exhibit A3 scan report shows that the complainant was not suffering from any kidney ailment.  DW2 deposed that due to advertent mistake on her part she has supplied the ultra sound scan image taken on the reverse side of the scan report of another patient to the husband of the complainant.  If that is so she would have scored that portion regarding the scan report of another patient.  As employee/staff of the opposite party who are dealing with the scanning of different parts of bodies of different patients as per the direction of the concerned doctors, DW2 would have been more vigilant and careful in furnishing reports of the scanning to the parties.  As found by the District Forum it is a classic case where the report of the scanning is supplied/furnished to the party with utmost carefulness and negligence.  DW2 deposed that she is working as a Scanning Assistant of the opposite party.  DW1 admitted that DW2 is an employee/staff of their institution.  As found by the District Forum the opposite party being the employer is vicariously liable for the acts of their employee, DW2.  The counsel for the appellant submitted that even if it is considered that there was some omission or negligence on the part of DW2, the employee of the opposite party, the opposite party cannot be held liable for that.  He relied on the decision of the Supreme Court in Sitaram Motilal Kalal Vs. Santanu Prasad Jayasankar Bhatt (1966 KHC 684).  In that decision it was held that a master is vicariously liable for the acts of his servant acting in the course of his employment.  Unless the act is done in the course of the employment the servant’s act does not make the employer liable.  On going through the said decision, it can be seen that the facts of the case discussed in that decision and the facts of the present case are entirely different.  Hence that decision is not applicable to the facts of the present case.  That is a case filed by the complainant claiming compensation against the defendants for the injuries sustained by him due to hit of a car driving by the third defendant.  The car belonged to the first defendant and he had entrusted the car to the second defendant to ply the car as a taxi.  The second defendant allowed the third defendant to take the car.  It was found by the Hon’ble Supreme Court that there is no evidence to show that the first defendant, the owner of the car had engaged or given permission to the second defendant to take and drive the car or he had given authority to the second defendant to employ strangers to drive the car.  In those circumstances the Hon’ble Supreme Court had made the above findings regarding the liability of the master for the acts done by his servant.  In the present case admittedly DW2 is an employee/staff of the opposite party and she was working as a Scanning Assistant.  She used to collect the amounts as charges for scanning and issue reports of the scanning.  DW2 deposed that she was doing all works other than taking the scanning images of the patients in the scan centre, opposite party.  In these circumstance it can be seen that the opposite party is vicariously liable for the acts of DW2 who is an employee of the opposite party.  In Haryana Gramin Bank and another Vs. Madanlal (2011 KHC 5304) it was held by the Hon’ble Supreme Court that the appellant bank is vicariously liable for the wrong doings of its staff resulting in monetary loss to the respondent/complainant.  In these circumstances we consider that there is no ground/reason to interfere with the finding of the District Forum that there is deficiency in service on the part of the opposite party and the opposite party is vicariously liable for the acts of its employee, DW2.

          12.     It has come out in evidence that on the basis of Exhibit A1 report and on the advice of the treating doctor complainant had to consult the doctor of a Specialist Hospital for the treatment of her kidney ailment and it was found that she was not suffering from any kidney ailments.  Exhibits A9 to A12 shows that the complainant had spent Rs.3,000/-(Rupees Three Thousand) for treatment.  The District Forum directed the opposite party to pay Rs.3,000/-(Rupees Three Thousand) to the complainant, the treatment expenses incurred by her which is just and reasonable.  Hence no interference is called for regarding that order.  The District Forum directed the opposite party to pay Rs.50,000/-(Rupees Fifty Thousand) as compensation to the complainant.  Counsel for the appellant submitted that the amount of compensation ordered by the District Forum is on the higher side.  It is the case of the complainant that, she had to abort the twin foetus to proceed with the treatment of her ailments to the kidneys.  The District Forum did not accept the said case of the complainant for the reason that in the complaint itself it is stated that on a perusal of the USG scan report regarding her Pelvis (page 1) Dr. Santha Thomas opined that it is better to conduct abortion.  So it has nothing to do with the report given by the opposite party to the complainant regarding kidney ailment.  It is the case of the complainant that she was working on temporary basis at Kerala Ayurveda Ltd., a clinic at Perumbavoor and because of the wrong report given by the opposite party she has lost the job.  Exhibit A7 shows that the complainant was appointed as Front Office Executive and Pharmacist in Kerala Ayurveda Ltd., Clinic at Perumbavoor for a monthly salary of Rs.5,473/-(Rupees Five Thousand Four Hundred and Seventy Three) on contractual basis for the period from 12.07.2012 to 10.07.2013.  In that letter it is stated that the appointment period will automatically expire on 10.07.2013.  In Exhibit A8 letter issued by the Branch Manager, Kerala Ayurveda Ltd., Perumbavoor dated 22.04.2013, it is stated that they had accepted the request of the complainant for termination of service as stated in her letter dated 20.04.2013 and she is relieved of her duties w.e.f. 31.03.2013.  It is stated by the complainant that the doctor stated to her that the abortion was complete on 03.05.2013.  Exhibit A3 shows that she consulted the Urologist of Specialist Hospital on 04.05.2013.  So much before that, on 20.04.2013 the complainant requested for termination of her job.  The complainant failed to prove that she lost her job/employment due to wrongful act on the part of the opposite party and it is only a voluntary action on her part.  So from the evidence it can be seen that except the amount of Rs.3,000/-(Rupees Three Thousand) spent for treatment the complainant has not suffered any financial loss because of the act of the appellant/opposite party.  Of course, she might have suffered mental agony for a period of about twenty days under the belief that she has ailments for her kidneys.  Considering all these facts, it can be seen that the amount of Rs.50,000/-(Rupees Fifty Thousand) ordered as compensation by the District Forum is on the higher side and it has to be reduced.  Considering the facts and circumstances we consider that Rs.25,000/-(Rupees Twenty Five Thousand) as compensation will be just and reasonable and it will meet the ends of justice.  So the amount of Rs.50,000/-(Rupees Fifty Thousand) ordered as compensation by the District Forum is to be reduced to Rs.25,000/-(Rupees Twenty Five Thousand) and the order passed by the District Forum is to be modified to that effect. In the order of the District Forum it is stated that the order shall be complied within a period of thirty days from the date of receipt of a copy of the order failing which the amount shall carry an interest @12% per annum.  We consider that the rate of interest ordered by the District Forum is on the higher side and it has to be reduced to 9% to be paid by the opposite party from the date of order of the District Forum.  So the order passed by the District Forum is to be modified to that extend, as stated above.  

          In the result, the appeal is partly allowed and the order passed by the District Forum is modified as follows:  The opposite party shall pay Rs.3,000/-(Rupees Three Thousand) to the complainant, the treatment expenses incurred by her and Rs.25,000/-(Rupees Twenty Five Thousand) by way of compensation together with interest @9% per annum on the total amount of Rs.28,000/-(Rupees Twenty Eight Thousand) from the date of order of the District Forum (31.07.2014) till realisation.

          Parties are directed to suffer their respective costs.

          At the time of filing of the appeal the appellant had deposited Rs.25,000/-(Rupees Twenty Five Thousand).  Respondent/complainant is permitted to obtain release of the said amount on filing proper application, to be credited/adjusted towards the amount due to her from the appellant/opposite party.

SL