HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER

This Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP Nos. 2 & 3 assailing the judgment and order dated 1.10.2015 passed by the Ld. District consumer Disputes Redressal Forum, Nadia in C.F.Case No. CC/2012/84, directing the OP No. 2 to pay to the Complainant Rs. 4,47,500/- and the OP No. 3 to pay to the Complainant Rs. 2,47,500/- within one month from the date of the order failing which the penal interest @ Rs. 500/- per day of default for the entire period of default shall be deposited by the OP Nos. 2 & 3 “in the account of President, D.C.D.R.F., Nadia”.

The brief facts of the case, as appearing from the materials on records, are that the Respondent No. 2/Complainant No. 2 took his pregnant wife to the Appellant No. 1/OP No. 2-Doctor first on 3.7.2011 and then again on 22.7.2011 when the Appellant No. 1/OP No. 2-Doctor advised for USG of the pregnant wife.  On 2.8.11 the Appellant No. 1/OP No. 2-Doctor after examining the USG report advised for admission of the pregnant wife of the Respondent No. 2/Complainant No. 2 to a nursing home and accordingly, the pregnant wife of the Respondent No. 2 was admitted to Appellant No. 2/OP No. 3-Nursing Home on 8.8.2011 at 7.00 A.M.  After admission the Appellant No. 1/OP No. 2-Doctor conducted ‘L.U.C.S.’ upon the pregnant wife of the Respondent No. 2 on 8.8.2011 at about ‘9.10 hours’ and a male baby was delivered.  After such operation when the Respondent no. 2/Complainant No. 2 visited the patient concerned the patient concerned was ‘unconscious’.  Thereafter on 9.8.2011 when the patient was suffering from ‘acute respiratory distress’ the Appellant No. 1/OP No. 2-Doctor advised for transfer of the patient concerned to a hospital which is equipped with ICU and ventilation facility as those facilities were not available in the Appellant No. 2/OP No. 3-Nursing Home where the patient concerned was admitted for ‘L.U.C.S.’ operation.  After such referral advice when the Respondent No. 2/Complainant No. 2 requested the Appellant/OP-Nursing Home for arrangement of an ambulance, the Appellant/OP-Nursing Home refused as revealed from the Petition of Complaint.  Then the Respondent No. 2/Complainant himself arranged the ambulance and took the patient concerned first at Aditya Medical Park, Barasat on 9.8.2011 and then at B.M.Birla Heart Research Centre where the patient was admitted on 10.8.2011 at 00.30 hours and expired at 9.20 A.M. leaving behind her husband, being the Respondent No. 2/Complainant No. 2, and the minor child, being the Respondent No. 1/Complainant No. 1, despite best efforts by the doctors there as averred in the Petition of Complaint.  It is alleged in the Petition of Complaint that the wife of the Respondent No. 2/Complainant died due to ‘gross deficiency in service/negligence’ on the part of the Appellant No. 1/OP No. 2-Doctor as also due to absence of essential infrastructure of ICU and ventilation in the Appellant No. 2/OP No. 3-Nursing Home.  With the aforesaid factual matrix the Complainants moved the Complaint concerned before the Ld. District Forum which passed the order in the aforesaid manner.  Aggrieved by the said impugned order the OP Nos. 2 & 3 have preferred the present Appeal.

The Ld. Advocate for the Appellants/OP Nos. 2 & 3 submits that the Complaint concerned is not supported by an expert-opinion in respect of medical negligence and hence, the said order which was passed without any expert-opinion is not sustainable.

The Ld. Advocate adds that the nature of connection of the signatory to the Affidavit in the Memo of Appeal with the concerned case has not been disclosed in the Affidavit and hence, the same being not in order the instant Appeal should be dismissed in absence of Affidavit in proper form.

The Ld. Advocate continues that the impugned order is full of self-contradiction as is indicated in the observation of the Ld. District Forum at Page-7 “…no bed-head-ticket was placed before the Forum” as against the observation of the Ld. District Forum at Page-13 “From the bed head ticket dtd. 09.08.11 we find that at around 11 am…”

The Ld. Advocate further submits that the negligence of the Appellant No. 1/OP No. 2-Doctor having not been supported by expert-opinion the Appellant No. 1/OP No. 2-Doctor is not liable for negligence and consequently, the Appellant No. 2/OP No. 3-Nursing Home is also not vicariously liable.

The Ld. Advocate continues that carelessness as observed by the Ld. District Forum in the impugned order having not been supported by any evidence, the said observation of the Ld. District Forum does not stand to reason.

The Ld. Advocate also submits that the wife of the Respondent No. 2/Complainant No. 2 expired at the referred hospital which has not been made a party to the Complaint concerned and hence, the instant Complaint is not maintainable for non-joinder of party.

The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be allowed and the order impugned be set aside. 

In support of his submissions the Ld. Advocate refers to the decision of the Hon’ble Supreme Court in Dr. C.P.Sreekumar, M.S.(Ortho) Vs. S.Ramanujam, reported in 2009 CTJ 581 (Supreme Court) (CP).

On the other hand, the Ld. Advocate for the Respondents/Complainants submits that in the Memo of Appeal the Appellants have referred to two conflicting dates of treatment, i.e. 8.8.2001 at Para-2(a) and 8.8.2011 at Para-2(b) of the Memo of Appeal, which indicates misrepresentation by the Appellants of the fact of treatment for which the instant Appeal should be dismissed summarily.

The Ld. Advocate further submits that the Appellant/OP-Doctor, who owed duty to the patient concerned, conducted the ‘L.U.C.S’ operation in a nursing home which was not equipped with ICU and ventilation, without which emergency in operation cannot be tackled and hence, such carelessness on the part of the Appellant/OP-Doctor indicates breach of duty the Appellant/OP-Doctor owed to the patient concerned.

The Ld. Advocate continues that the expiry of the patient concerned because of non-availability of support of ICU and ventilation at the time of urgent need of the same to tackle the acute respiratory problem indicates ‘resultant damage’ caused for breach of duty on the part of the Appellant/OP-Doctor and hence, the Appellant/OP-Doctor is liable for carelessness and resultant negligence.

The Ld. Advocate further submits that in view of the aforesaid liability of the Appellant/OP-Doctor the Appellant/OP-Nursing Home is also vicariously liable for its failure to save the life of the patient concerned by careful and diligent treatment on behalf of the Appellant/OP-Doctor practising in the said Nursing Home.

The Ld. Advocate adds that besides the above, the Appellant No. 2/OP No. 3-Nursing Home is also liable for allowing admission of the patient concerned to it for L.U.C.S. operation despite it is lacking of ICU and ventilation arrangement which are indispensible to meet any emergency at the time of operation.

The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be dismissed and the impugned order be affirmed.

Heard both the sides, considered their respective submission and perused the materials on records.

The documents of treatment, as available on records, do not reveal that the Appellant No. 1/OP No. 2-Doctor advised for tests, such as Blood Sugar test, ECG, etc., which are essentially required for taking preventive steps to tackle complications for pre-operative or post-operative period.

Further, the Appellant/OP-Doctor conducted the operation in a nursing home which was not equipped with ICU and ventilation which are indispensibly required in a nursing home where operation is done to tackle emergency situation, which clearly indicates breach of duty as well as resultant negligence and carelessness on the part of the Appellant No. 1/OP No. 2-Doctor.

The aforesaid facts clearly indicate ex facie breach of duty as well as resultant negligence on the part of the Appellant No. 1/OP No. 2-Doctor and absence of expert-opinion does not negate such ex facie breach of duty and negligence on the part of the Appellant No. 1/OP No. 2-Doctor.  It is well-settled by the Hon’ble Supreme Court in the decision dated 8.3.2010 in Civil Appeal No. 2641 of 2010 (V.Kishan Rao Vs. Nikhil Super Speciality Hospital) that expert opinion is not mandatory in all cases.

As regards the non-joinder of party, it is well-settled by the Hon’ble Supreme Court in Smt. Savita Garg Vs. Director, National Heart Institute, reported in 2014 (4) 258 (SC) that non-joinder of party does not lead to rejection of complaint.

The facts of the decision referred to by the Ld. Advocate for the Appellants/OPs being not identical with that of the case on hand, the same is not of any help to the Appellants/OPs.

The aforesaid facts, submissions and observations lead to the conclusion that the three essential components of medical negligence, i.e. ‘breach’, ‘duty’ and ‘resultant damage’ as observed by the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr., reported in (2005) 6 SCC 1, are present in the case on hand and hence, the order impugned deserves affirmation.

Consequently, the instant Appeal is dismissed.  The order of the Ld. District Forum is affirmed.  No order as to costs.