For the Appellant:            Mr. H. Deka, Advocate

For the Respondent:        Mr. K.J. Saikia, Advocate

Date of Hearing:              05-12-2019

Date of Judgment:           04-02-2020

J U D G M E N T

BY MRS. JUSTICE DR. INDIRA SHAH, PRESIDENT,

1. Complaint case No. 22 of 2005 filed by the appellant, was dismissed by the District Forum, Kamrup. Being aggrieved by the said judgment dated 13-03-2018, the appellant (complainant) has preferred the instant appeal before this Commission.
2. Brief facts, as set out in the complaint are that, the complainant’s daughter, namely, Sristri Chetri fell ill on 16-08-2003 and Dr. Nibedita Goswami, Child Specialist of East End Nursing Home was consulted. As Sristri did not get any relief, Dr. M.C. Dutta, another Child Specialist was consulted and yet the child failed to respond the treatment. Dr. M. C.Dutta changed the medicine and then child got immediate relief. On 30-08-2003, Sristri Chetri actively participated in the birthday celebration of her younger brother who had completed one year. Next day i.e. 31-08-2003, while taking bath, suddenly she felt cold and uneasiness. The appellant immediately contacted Dr. M.C. Dutta over phone, who advised him to shift her to Wintrobe Hospital (respondent No. 1), for immediate relief. The appellant and his wife along with their daughter rushed to the hospital at about 12.40 P.M. .Dr. A. Barman, a Resident Consultant (respondent No. 3), in presence of Dr. Tridib Barua (respondent No. 2), examined the patient. She was complaining uneasiness in her chest and as such respondent No. 3 advised for giving oxygen. The complainant alleged that neither the respondent No. 2 and 3 nor their staff made any arrangement for supplying oxygen to his ailing daughter nor any life saving injection was injected. The appellant consulted Dr. A.K. Sarma, another Child Specialist who promised to come to the hospital. In the meantime, the health condition of his child deteriorated and she was screaming for help. The respondent Nos. 2 and 3 paid no heed to the request of the appellant with regard to supplying oxygen to his daughter. Ultimately, the child died at about 1.55 P.M. After her expiry, Dr. A.K. Sharma arrived. Alleging deficiency in service, the complainant filed complaint seeking compensation of Rs. 15,00,000/- from the respondents.
3. The respondent No. 1 and 2 in their written version alleged that the child was examined by Dr. Nibedita Goswami, who diagnosed and treated for congenital heart disease i.e. V.S.D. Many blood, urine and radiological investigations were advised to be done. The complainant had knowledge that that child had congenital heart disease but he did not follow the advice given by the Child Specialist. Admittedly, the child was brought to Wintrobe Hospital in serious condition on 31-08-2003 at 1 p.m. She was duly examined by doctor immediately and was advised admission, oxygen and life saving injection were given. Several doctors, nurses, ward staff rendered emergency medical service. The respondents denied that oxygen was not supplied or life saving injections were not given. According to the respondents, Dr.A. K. Sarma came who also treated the child. The child was suffering from disease like VSD and the complainant suppressing the fact, has filed the complaint.
4. The complainant examined himself and adduced evidence of two witnesses namely, Sri Jayanta Kr. Parajuli and Smt. Sangita Das. Four witnesses were examined on behalf of the opposite parties/respondents.
5. According to the complainant, his daughter Sristi born on 20-11-1999 was a healthy child and she did not suffer from abnormalities either physical or mental or disease after her birth. In the year, 2003, she was admitted in the preparatory class and she was very active and regular in attending her classes. Only on 16-08-2003 she had fever so the complainant consulted Dr. Nibedita Goswami, Child Specialist of East End Nursing Home, Guwahati, who prescribed few medicine. But since his daughter did not get any relief, he consulted Dr. M.C. Dutta another child specialist who also prescribed medicines. When the child had no relief, again Dr. Dutta was consulted and the doctor altered his prescription and prescribed some medicines. This time, the medicines prescribed by Dr. Dutta worked and his daughter recovered from illness by 25-8-2003. She participated actively in the birthday celebration of her brother on 30-08-2003. On 31-8-2003, after taking bath, she felt cold and uneasiness. Complainant then called Dr. M.C. Dutta over phone who advised him to admit her to Wintrobe Hospital. The child was accordingly shifted to the hospital at about 12.40 p.m. by her parents. She was physically examined by Dr. A. Barman in presence of Dr. Tridib Barua, respondent No. 2. Dr. Barman advised for giving oxygen to the child. Complainant requested both the doctors to provide oxygen immediately. The doctors advised him to register his daughter’s name. The complainant alleged that inspite of registering his daughter’s name, neither the doctors nor any staff of the opposite party No. 1, hospital made any arrangement for supply of oxygen to his ailing daughter. Meanwhile, the complainant contacted Dr. A.K. Sarma over phone who promised to attend the child. The condition of the child deteriorated and she was crying  for help uttering ‘papa’ ‘mummy’ but she was not attended by the doctors or by their staff which ultimately led to end of her life at 1.55 p.m. After expiry of his daughter, Dr. A.K. Sharma arrived at the hospital. The complainant denied the correctness of death certificate of his daughter. According to him, no medical test or diagnosis of Pulmonary Hypertension or E.C.G. had even been conducted by the opposite parties to arrive at the findings.
6. From the cross-examination of the complainant, it appears that his daughter who fell sick was examined by Dr. Nibedita Goswami, a Child Specialist in East End Nursing Home on 16-08-2003 and 19-08-2003. The complainant has admitted that Dr. Nibedita Goswami advised him to go for chest X-Ray of the child and accordingly she was taken to Skylab Laboratory. The complainant neither filed nor exhibited the prescription or X-Ray Report. He simply stated that he is not aware if in the X-Ray eco-cardiography was suggested. He simply did not go for eco-cardiography. He again consulted Dr. M.C. Dutta who also prescribed medicines. However, the prescription given by Dr. M.C. Dutta was not filed or exhibited. The complainant also admitted in his cross-examination that in the criminal case lodged by him, he had deposed that his child was treated by Dr. A.K. Sharma, a Child Specialist, whereas in his examination-in-chief, he stated that Dr. A.K. Sharma arrived after the death of her daughter.
7. The complainant in his evidence, stated that he and his wife took the child to the hospital i.e. opposite party No. 1. Wife of the complainant was not examined. Evidence of P.W. 2 Jayanta Kr. Parajuli is inconsistent to the evidence adduced by PW 1 (complainant). According to the complainant, his daughter was admitted in the hospital and was examined by Dr. Barman in presence of another doctor. P.W 2 stated that he saw that the wife of the complainant moving around in the varanda of the hospital restlessly taking her daughter Sristi in her lap. She told him that though her daughter was allowed to be admitted in the hospital, but the hospital authority have not been able to provide any bed for the child. They also failed to provide oxygen. The child died in her mother’s lap.
8. P.W. 3 is the Principal of Spring Birds School where the child was studying. According to her, Sristi was regular in attending her classes. She was healthy girl. However, P.W. 3 declined to appear for cross-examination. Therefore, the evidence in affidavit of PW 3 was expunged.
9. As per the evidence adduced by the opposite parties/respondents, the complainant’s daughter was brought to Wintrobe Hospital in a serious condition at around 1 p.m. by her parents. The child was examined immediately by the doctors and was admitted in the hospital. Oxygen and life saving injection were administered.   
10. Dr. A.K. Sharma, a senior Child Specialist, was called who arrived within ten minutes and treated the child very carefully. The complainant did not disclose the past history of the patient to the opposite party No.1 and 2 that the patient had heart disease since her birth.
11. Dr.A.K. Sharma (D.W. 2) in his evidence stated that late Sristri Chetri, the patient was known to him. She was suffering from congenital heart disease since her birth and was advised further treatment. This part of the evidence of Dr. Sharma has remained unrebutted.
12. Undisputed facts are that late Sristi Chetri fell sick and was examined by Dr. Nibedita Goswami on 16-8-2003 and again on 19-8-2003. But the child did not recovered. Then Dr. M.C. Dutta was consulted but the child did not get any relief. Again Dr. Dutta being consulted, altered his previous prescription and the complainant’s daughter got relief by 25-8-2003. On 31-8-2003, she suffered breathing problem, felt cold and uneasiness. Dr. Dutta was called over phone who advised immediate hospitalization. The complainant did not file or exhibit the prescription given by Dr. Nibedita Goswami. However, he admitted that Dr. Goswami advised for chest X-Ray of his daughter and accordingly the ailing child was taken to Skylab Laboratory. The complainant denied that his daughter was suffering from pulmonary hypertension resulting from congenital heart disease and was advised for ECHO (for heart disease). Admittedly, no ECHO was done. The complainant did not exhibit any prescription of Dr. M.C. Dutta. The opposite parties i.e. D.W. 1 exhibited Ex. –B, the X-Ray report of Scylab Laboratory. According to the complainant, he called Dr. A.K. Sharma, Child Specialist who arrived at the Hospital after the death of his daughter. It is in the evidence of D.W. 2 Dr. A. K. Sharma that he arrived at the hospital at 1.10 a.m. and examined the patient, she was declared dead at 1.55 p.m. Dr. Sharma further stated that the complainant’s daughter was known to him and she was suffering from congenital heart disease since birth.
13.       The complainant alleged that his daughter was brought to the hospital and was

examined by Dr. Barman who advised for giving oxygen. But neither the opposite parties nor their staff made any arrangements for supply of oxygen to the ailing child. It is in the evidence of D.W. 3 and 4 that on instruction of the doctors, oxygen and life saving injection were administered. Although the opposite parties also failed to produce and exhibit the relevant bed head ticket or any prescription to show that oxygen and life saving injection were administered, but they have given oral account.

14. In the case of Kishore Samrite Vs State of U.P. & Ors, Criminal Appeal No. 1406 of 2012 decided on 18-10-2013 in para 34 and 35 inter-alia, held as under;-

34. “ The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are qui-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimentoet injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands”.

35 “ No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of materials facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the Court is duty bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of the court.”

15.     Further, in S.J.S. Business Enterprises (P) Ltd vs State of Bihar, 2004 (7) SCC 166, the Apex Court has held as under;-

“ As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it.”

16.    In the instant case, the complainant suppressed the ailment suffered by his child. He did not produce the prescription of the doctors who earlier treated his daughter. He did not produce the X-Ray Report of the child. His wife who all along accompanied him and his daughter in the hospital and she was the material witness, but her evidence was withheld.

17.       In view of ratio of judgments in the aforementioned cases, and in view of the fact that the complainant did not come to the Court with clean hands, we are constrained to dismiss the appeal. In the result, the appeal is dismissed. Parties shall, however, bear their own costs.

18.        Send back the original record to the concerned District Forum along with a copy of this judgment.