Kerala

StateCommission

CC/11/21

DR.P.JAYASREE - Complainant(s)

Versus

M/S ERNAKULAM MEDICAL CENTRE - Opp.Party(s)

05 Oct 2016

ORDER

 

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVANANTHAPURAM

 

 

                    CC.21/2011

JUDGMENT DATED:05.10.2016

 

PRESENT:

 

HON.JUSTICE SHRI.P.Q.BARKATHALI                :  PRESIDENT

 

SHRI.V.V. JOSE                                                                    : MEMBER

 

1. Dr.P.R.Jayasree, W/o.Dr.Manish Kumar,

   “Ananyam”, Vidhya Nagar,                                                       

   Thenjipalam P.O, Malappuram – 673 636

                                                                                                            : COMPLAINANTS

2. P.R.Rani, W/o.Sri.K.S.Vinod,

    “Sharanya”, Thalayolaparambu,

    Kottayam – 686 605.

 

(By Adv: Sri.S.Reghukumar & B. Ajaykumar)

 

                Vs.

1. M/s.Ernakulam Medical Centre,

    Palarivattom, NH Bypass, Kochi-682 028,

    Represent by its Managing Director/ Chairman.

                                                                                                            : OPPOSITE PARTIES

2. Chairman/ Managing Director,

    M/s.Ernakulam Medical Centre,

    Palarivattom, NH Bypass, Kochi-682 028.

 

(By Adv: Sri.P.Ramakrishnan)

 

 

 

           

 

JUDGMENT

 

HON.JUSTICE SHRI.P.Q.BARKATHALI  :  PRESIDENT

 

 

This is a complaint filed by the complainants who are the legal heirs of deceased Purushothaman claiming a compensation of Rs.1 crore for the alleged deficiency of service on the part of the opposite parties hospital.

 

2.       The case of the complainants as detailed in the complaint in brief is this:

          The complainants are the youngest daughters of Late Purushothaman who retired from the Kerala State Service as District Registrar in the Registration Department.  The opposite parties are M/s Ernakulam Medical Center Hospital, Ernakulam represented by its Managing Director.  Deceased Purushothaman was undergoing treatment in the Nephrology Department of opposite parties’ hospital for about 3 years.  He was undergoing dialysis twice a week for about 4 months.  On 30/12/2009 he developed a cardiac problem during dialysis and died in the evening.  As the 3 elder daughters of the deceased were out of station, the opposite parties took custody of the dead body for keeping in the mortuary attached to the hospital for two days upon payment of charges as demanded by the opposite parties.  On 01/01/2010 the relatives of the deceased approached the opposite party for the release of the body of the deceased for cremation and other rituals.  But the opposite party offered another cadaver suggesting it to be the dead body of late Purushothaman.   When the mistake was brought to the notice of the Hospital authorities they insisted that it is the dead body of   Late Purushothaman.  When the police interviewed it was found out that opposite parties have released the dead body of Late Purushothaman to some other persons who cremated the body.  Complainants are consumers as defined u/s.2(1)(d) of Consumer Protection Act of 1986.  The callous attitude of the opposite party in releasing the dead body of the father of complainants to a third party is clearly deficiency of service on their part.  The act of the opposite party has resulted in the breach of right to a decent burial of dead body of the father of the complainants.  The complainants have suffered much mental agony. Complainants claimed a compensation of Rs.1 crore.

 

3.      The opposite parties are M/s Ernakulam Medical Center Hospital, Ernakulam represented by its Managing Director who in his version contented thus:  The complaint is not maintainable as there is no unfair trade practice or deficiency of service on the part of the opposite parties.  That apart complaint is filed only by two of the four daughters of deceased Purushothaman.  The matter has been settled between the parties.  Lt.Col.A.P.Kanthy, aged about 88 years who was residing with his daughter Sriranjini Neelakantan at 3C,  Abad Oriental, Mamangalam, had been admitted in the hospital with breathlessness and other complaints on 28/12/2009.  He died while undergoing treatment at about 6.55 A.M on 31/12/2009.  On the request of his relatives, the dead body was kept in the mortuary, the box containing the name slip.  Deceased Purushothaman was a patient of the hospital for November, 2008 onwards he was brought to the hospital for weekly dialysis.  He died from the hospital on 30/12/2009 at about 8.45 P.M.  On the request of his grandson P.G.Jayasankar, the dead body was placed in the hospital mortuary and the box was tagged.  On 31/12/2009, four persons who were relatives of deceased Kanthy mistakenly identified the dead body of Purushothaman as that of deceased Kanthy and the Public Relations Officer Mr.V.K.Paramesh released that dead body to them and it was cremated in the Pachalam Crematorium.  On 01/01/2010 Jayasankar, the grandson of deceased Purushothaman and his father came to the hospital and pointed out that the dead body in the mortuary was not that of Purushothaman.  Though the hospital authorities contacted the relatives of deceased Kanthi they were reluctant to come.  Therefore Public Relations Officer contacted Palarivattom police.  Sub Inspector of Police Mr.Kareem came there and telephoned Kanthy’s residence and insisted that someone responsible should come.  After sometime the brother of deceased Kanthy, Sri. Sasi A Pillai came there.  After initial reluctance he accepted the mistake and admitted that the dead body now in the mortuary is that of his brother Kanthy.  Subsequently Mr.Udayakanthi, the son of deceased Kanthy informed the hospital authorities that matter has been settled.  Thereafter the dead body of Kanthy was released to their relatives who took the same of the Trivandrum, the native place of the deceased and the cremation formalities were done for second time.  There was no fault on the part of the hospital authorities.  Though there were names on the box seeing the definite stand taken by the relatives of deceased Kanthy, the dead body of Late Purushothaman was mistakenly handed over.  As both the deceased were in there late seventies and had lean faces and white beard the mistake occurred.   There is no evidence to show that the hospital authorities have deliberately committed the said mistake.  The ashes of the deceased Purushothaman were handed over to the relatives of the complainants.  Therefore complaint has to be dismissed. 

4.      The 1^st complainant was examined as PW1 and Ext.P1 and Ext.P2 were marked on her side.  On the side of the opposite parties DWs1 to 8 were examined and Ext.D1 to D5 were marked.

5.      The following points arise for consideration:

1. Whether the complaint is maintainable?
2. Whether there was any deficiency in service on the part of the opposite parties?
3. If so, what is the compensation complainants are entitled to?

Point No.1

It is admitted that deceased Purushothaman, father of complainants died from the opposite parties hospital on the  evening of 30/12/2009 after developing a cardiac problem while undergoing dialysis and that his body was kept in the mortuary of the hospital.  It is also not disputed that Lt.Col.A.P. Kanthy died from the hospital in the morning of 31/12/2009 and his body was also kept in the mortuary of the hospital.  On 31/12/2009 the hospital authorities mistakenly released the dead body of Purushothaman to the relatives deceased A.P.Kanthy who took the same and cremated in the Pachalam Crematorium. Only on 1/1/2010 the grandson of Purushotham came to the hospital the hospital authorities realized the mistake.  Subsequently dead body of Kanthi was released to Mr. Udayankanthi son of deceased Kanthi.

7.      It is alleged by the complainants that there is clear deficiency in service on the part of Hospital authorities and claimed a compensation of Rs.1 crore.  The   opposite parties contented that the complainants are not consumers as defined under section 2(1)(d) of Consumer Protection Act and that it was only an inadvertent  mistake committed by the Public Relation Officer,  Sri.V.K.Pramash for which they are not liable.  Therefore the first question for consideration is whether the complainants are consumers’ as defined under section 2(1)(d) of the Act.

8.      It is admitted that complainants have paid the mortuary charges for keeping the dead body of Purushothaman in the hospital.  Ext.P1 is the copy of the receipt for having paid the mortuary charges. It is a service rendered for consideration by the opposite parties within the meaning of Sec.2(1)(O) of Consumer Protection Act, 1986.  That being so, complainants have to be considered as consumer as defined under section 2(1)(d) of Consumer Protection  Act.

9.      The counsel for the opposite parties argued that deceased Purushothaman had four children, that only 2 of them had filed the complaint and that therefore the complaint is not maintainable.  There is no substance in the above contention.  The Apex Court has held in Spring Meadows Hospital Vs Harjot Dhlustia(1998 CPJ81)  (Supreme Court) that under the comprehensive  definition of the term ‘Consumer’ even a member of a family gets the status of a consumer under the Act and in an action by a member of a family for  any deficiency in service, a trader cannot take a stand that there is no privity of contract.  In the light of the principles laid down in the above decision we hold that complaint is maintainable though filed by only 2 daughters of the deceased Purushothaman.

Point  No.2

The next question for consideration is whether there was any deficiency in service on the part of opposite parties.  The counsel for opposite parties argued that it was only an inadvertent mistake committed by DW3 the Public Relation Officer of the hospital and no negligence or deficiency in service can be attributed to opposite parties.  We are unable to agree.  PW1, the first complainant testified in terms of the complaint.  She would say that the irresponsible action of opposite party in releasing the dead body of their father to a third party had caused great mental agony and that they were denied the right to perform last rites to their loving father.

 

          11.    The opposite parties examined DW1 to DW8 to prove that there was no negligence on their part.  But their evidence actually supports the case of the complainants.  DW1 is Mrs.Lekha S Menon, the Service Manager of the opposite party hospital.  She testified that a band will be put on the hand of dead body showing the name, address and sex of the deceased and that in the freezer also name tag will be put on the white board of the freezer wherein the name of the patient and number of freezer will be written.  She further testified that the register kept in the freezer it will be entered in which the dead body is kept in the freezer.  Inspite of all these this mistake occurred.  She was unable to explain how such a mistake happened.

          12.    DW2 is Mr.K.R.Jayachandran who is the Senior Public Relation Officer of opposite party hospital.  He admitted that he was not present when the dead body was released to the relatives of deceased Kanthy and that afterwards when he went to the mortuary and inspected the dead body there it has the tag of Kanthy.  The evidence of DW2 affirms the allegation of complainants that there was callous negligence on his part as well as in the part of the person who released the dead body of Purushothaman to the relatives of deceased Kanthy instead of the dead body of Kanthi.

 

          13.    DW3 is Mr.Pramesh, the Public Relation Officer of the opposite party hospital.  He is the person who actually released the dead body to the relatives of deceased Kanthy. He would say that in the dead body which he released the name tag of Purushothaman was there and that as the relatives of deceased Kanthy identified it as that of Kanthy he released it to them.  DW3 should have informed the complainants as there was dispute regarding the identity of the dead body of deceased Kanthy and Purushothaman.  DW3 admitted that there was some mistake committed by him in releasing the dead body of Purushothaman to the relatives of Kanthy.

14.    DW4, Sri. Deepak K Prakash is another Public Relation Officer of opposite party hospital at that time.  But he was not present when the dead body of Purushothaman was released to the relatives of deceased  Kanthy.  He would further say that it was only after verifying the name slip and tag the dead body will to be released to the relatives.  He was unable to explain why such a mistake occurred. 

15.    DW5, Sri Abdul Karim is the then S.I of Police of Palarivattom Police Station who interfered in the matter.  He testified regarding the incident.  He would say that he took the relatives of deceased Kanthy to the house of complainants and that they apologized for having committed such a mistake.  Relying on the evidence of DW5, the counsel for opposite parties argued that the matter has been settled between the parties and that now nothing survives   for consideration.  We are unable to agree for PW1 as well as DW8 Advocate Jayasankar, the grandson of the deceased Purushothaman emphatically denied such a suggestion in cross examination.  Further there is no evidence to show that complainants have settled the matter with opposite parties. 

 

          16.    DW6, Mr. Sasi. A Pillai is the brother of deceased Kanthy and DW7 Mr.Udayankanthy is the son of deceased Kanthy.  They categorically stated that they did not identify the dead body before obtaining the release of the body and that they were not allowed to enter the mortuary at that time.  They denied the suggestion that it was at their insistence the dead body of Purushothaman was released to them.  They further stated that believing that it was the dead body of Kanthy they took the dead body and cremated and subsequently they apologized to complainants for having made such a mistake.  Their evidence do not in any way help the opposite parties that hospital authorities have settled the matter with complainants.

          17.    DW8 is Advocate Jayasankar the grandson of deceased Purushothaman.  He has testified in a convincing manner that there was name tag on the dead body of Purushothaman before being kept in the          freezer of mortuary.  His evidence clearly shows that hospital staff carelessly released the dead body of Purushotham to DW6 and 7 instead of the dead body of deceased Kanthy.

 

18.          Thus the evidence of PW1 coupled with the evidence of DW1 to DW8  proves  beyond  doubt that there was clear negligence on the part of opposite parties in   releasing the dead body of Purushothaman to DW6 and DW7 the brother and son of deceased Kanthy.  Thus there is clear deficiency of service on the part of opposite parties.

Point No.3

          Next question for consideration is whether complainants are entitled to any compensation?  If so, what is the quantum.  The counsel for opposite parties argued that complainants did not sustain injury or loss and that therefore they are not entitled to any compensation.  We are unable to agree.  Complainants and other legal heirs of deceased Purushothaman were denied the right to perform last rites of their beloved father.  They have suffered great mental agony which cannot be estimated in terms of money.  It is a life long loss suffered by the complainants. Taking in to account all these facts and in the circumstances of the case we feel that a compensation of Rs.25 lakhs would be reasonable.  Complainants are also entitled to interest at the rate of 12% p.a. from the date of complaint till realization and a cost of Rs.10,000/-.  

 

In the result the complaint is allowed in part.  Opposite parties are directed to pay a compensation of Rs.25,00,000/- to the complainants with interest @ 12% per annum from the date of complaint till realization.   Complainants are entitled to a cost of Rs.10,000/-.

 

 

 

JUSTICE P.Q.BARKATHALI:  PRESIDENT

 

 

 

V.V. JOSE : MEMBER

 

APPENDIX

 

COMPLAINANTS’  WITNESS

 

PW1           : Smt.Dr. Jayasree P.R

 

COMPLAINANT’S EXHIBITS

 

Ext.P1        : Mortuary bill of Ernakulam Medical Centre Hospital.

 

Ext.P2        : Death Certificate of Sri. Purushothaman.

 

OPPOSITE PARTIES  WITNESS

 

DW1           : Smt. Lekha Sudhakara Menon

DW2           : Sri. K.R. Jayachandran

DW3           : Sri. Pramesh V.K

DW4           : Sri.Dipu K Prakash

DW5           : Sri. Abdul Karim P.M

DW6           : Sri. Sasi A. Pillai

DW7           : Sri. Udayakanthy

DW8           : Sri. Jayasanker P.G.

 

OPPOSITE PARTIES EXHIBITS

 

Ext.D1        : Copy of mortuary card pertaining to Lt. Col. A.P.Kanthy maintained by the 1^st OP.

 

Ext.D2        : Copy of declaration given by Uday Kanthy, S/o late Col. A.P. Kanthy to the 1^st OP.

 

Ext.D3        : Copy of mortuary card pertaining to Purushothaman maintained by the 1^st OP.

 

Ext.D4        : Copy of declaration given by V.N. Santhosh, Grandson of late Purushothanman to the 1^st OP.

 

Ext.D5        : Copy of letter dated: 1.1.2010 issued by Uday Kanthy, S/o late A.P.Kanthy to the 1^st OP.

 

 

 

 

JUSTICE P.Q.BARKATHALI:  PRESIDENT

 

 

 

V.V. JOSE : MEMBER

 

VL.

 

 

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