1.      The Appellants filed the instant Appeal under Section 19 of the Consumer Protection Act, 1986, which is pari materia to Section 51 of the Consumer Protection Act, 2019 ( “the Act”), against the Order dated 09.08.2021 passed by the learned State Consumer Disputes Redressal Commission, Delhi (“State Commission”) in Consumer Complaint No. 29 of 2013, wherein the State Commission partly allowed the Complaint filed by the Complainant (Respondent herein) against the Opposite Parties (Appellants herein).

2.      For convenience, the parties in the present matter are being referred to as in the Complaint before the State Commission. Shri Narendra Kumar Sengar is identified as the Complainant who is the Husband of Smt. Guddi Sengar (patient or deceased). Northern Railway Central Hospital, through its Director General & Director are identified as Opposite Parties (OPs).

3.      Brief facts of the case, as per the Complainant, are that his wife experienced abdominal pain, prompting her to seek medical attention at Navjeevan Hospital in Aligarh on 17.03.2011. After certain diagnostic tests, including blood tests, CT scans, ultrasound, and chest x-rays revealed the presence of an abscess in lever. Recognizing the severity of her condition, doctors at Navjeevan Hospital recommended transferring her to a more equipped facility. Thus, the patient was brought to Central Hospital, Northern Railway, New Delhi and was admitted to the Emergency Ward at 9:00 AM on the next day, 18.03.2011. At Railway Hospital, Dr. Celestana Dungdung examined her in the Emergency Ward and referred the patient to Surgery Ward. Dr. Pankaj Arora examined her in Surgery Ward, prescribed certain tests and recommended her admission to Medical Ward, despite the nature of the case being mainly surgical. The Medical Ward doctor diagnosed her with a "Liver Abscess ruptured into peritoneum, septicemic, ac. Renal failure...."

4.      The Complainant alleged that despite critical condition of the patient, the surgery was delayed by the medical staff, leading denial of timely intervention. She received minimal attention from evening of 18.03.2011 until the afternoon on 19.03.2011. Only around 9:00 PM on 19.03.2011, her serious condition was noted and informed him that immediate surgery was required. At that point, as updated investigation reports were unavailable, prompting doctors to operate based on the earlier Aligarh test reports. The situation turned worse as the hospital lacked required specialty facilities, and the surgeon who operated her was insufficiently competent to handle such cases.

5.      After the surgery, she was transferred to ICU and placed on a ventilator. The patient failed to recover and ultimately died on 29.03.2011. The Complainant alleged that the patient's treatment was not timely, the surgery was delayed, and when performed, it was carried out by inadequately trained doctors. Further, the medical staff failed to exercise reasonable care and caution in treating a patient with a ruptured liver abscess. The patient was left unattended in the hospital for nearly 36 hours, a period that proved fatal, ultimately resulting in her death. Being aggrieved the Complainant filed a CC No. 29 of 2013 before the State Commission against OPs alleging deficiency in service in treating his wife, leading to her untimely demise and praying for the relief as under :-  

a. Direct the OPs to jointly and severally pay to the complainant an amount of Rs. 30,00,000/- as compensation for the negligent and incorrect treatment given by the OPs to the deceased wife of the complainant.

b. Direct the OP to pay an amount of Rs. 10,00,000/- towards mental torture and harassment, etc.

c. Direct the OP to pay to the complainant Rs. 5,00,000/- as costs of litigation;

d. Direct the OP to pay interest at the rate of 24% upon the above said amount.

6.      In their reply, the OPs resisted the allegations on technical ground and on merit. The OPs contested that Complainant is not a consumer as defined by Section 2(1)(d), 2(1)(g), and 2(1)(o) of the Act. The OP, being a government hospital, namely Northern Railway Central Hospital, provided free treatment to her without any charges. Consequently, the service rendered by them falls outside the scope of the term 'service' as defined under Section 2(1)(o) of the Act. The OPs further contended that there is no evidence establishing any deficiency in service or professional negligence on their part. They asserted that the hospital and its staff offered the best available patient care and support to the deceased patient. The OPs argued that the patient received proper medical care and treatment, with a timely and accurate diagnosis, correct administration of drugs, and comprehensive modern medical assistance throughout. The hospital and its staff cannot be held liable for any shortcomings/ negligence that purportedly led to the death of the Complainant's wife. The OPs emphasized that the patient's condition was promptly diagnosed upon her admission to NRCH on 18.03.2011. Within 24 hours, a correct diagnosis of a Large Liver Abscess with rupture and septicaemia, a life-threatening infective illness was confirmed. The OPs asserted that she was provided all necessary management and care during her hospitalization. On the merits of the case, the OPs denied allegations and request the dismissal of the complaint, asserting that no cause of action was established against them.

7.      The learned. State Commission vide order 09.09.2021 partly allowed the Complaint with following order: -

“28.    Keeping in view the principles detailed above and the facts and circumstances of the case, the age of the patient, and other necessary and essential factors, we are of the considered view that it would be just and reasonable to award compensation of Rs. 10 Lakhs (Rupees Ten Lakhs) with interest at the rate of 5% from the date when the cause of action arose and negligence was admittedly done till the realisation of the amount, to the complainant for the suffering, mental pain and agony caused. The amount so awarded be paid by the OP hospitals being liable, within a period of two months from the date of receipt of the certified copy of this order. Awarding of cost would surely serve the purpose of bringing about a qualitative change in the attitude of the hospitals for providing service to the human beings as human beings. Human touch is necessary; that is their code of conduct; that is their duty and that is what is required to be implemented more so when personal liberty is guaranteed under Article 21 of the Constitution.

8.      Being aggrieved by the impugned order dated 09.08.2021 passed by the State Commission, OPs filed this Appeal seeking the following:

a). Admit the appeal, call for the records and after hearing the parties be pleased to set aside the impugned order dated 09.08.2021 passed by Hon'ble State Consumer Disputes Redressal Commission, Delhi in Complaint Case No. 29/2013 and dismiss the complaint; Or

b) Remand the matter back to the Hon'ble State Commission for hearing of the complaint, call for Expert Report and pass reasoned order; And/or

c) Pass such other order/orders, as may be deemed fit and proper in the facts and circumstances of the case in the interest of justice.

 9.     In the Appeal, the Appellants/OPs have mainly raised the following issues::

1. The impugned order, passed through a virtual hearing in the absence of both parties, is legally unsustainable. The proceedings were marred by various issues, including lack of quorum on 03.12.2020, technical glitches on 22.03.2021, and an order being reserved on 28.07.2021 without the presence of any party. The OPs lacked opportunity to present oral arguments. The subsequent order on 09.08.2021 rendered the entire proceedings invalid. They claim ignorance of the matter being taken up during lockdown and request a fresh hearing.
2. The State Commission failed to issue a reasoned or speaking order. The Commission, by allowing the complaint and holding the appellants negligent in the treatment of the patient, failed to provide a comprehensive justification for its decision.
3. The cases involving allegations of medical negligence, especially when challenging the competence of a doctor or the hospital's facility, the matter should have been referred to a Medical Board or expert evidence for a fair evaluation. They highlighted the absence of a hearing for both parties, lack of expert reports, and the failure to constitute a Medical Board. Appellants argued that this contravenes the principle of "Audi alteram partem" and sought remanding the case to State Commission for fresh hearing, expert input and speaking order
4. The State Commission failed to consider absence of any negligence on their part and argued that required diagnostic tests and medical treatment were provided to the patient following standard professional protocols. They asserted that the advice and treatment were given in a timely manner, with no casual, careless, or negligent approach on their part.
5. The Appellants sought review of the proceedings, highlighting procedural flaws, lack of a reasoned order, failure to consider expert evidence, and the denial of negligence on their part and requested for remanding the case for fresh hearing and comprehensive evaluation of the case.

10.    In his arguments, the learned counsel for Appellant reiterated the facts and evidence previously filed before the State Commission. He asserted that the Appellant does not fall under the purview of Section 2(1)(o) of the Act, 1986 being a Govt Hospital where no fees was charged from her. There is no evidence to establish any negligence on the part of Appellant. Further, he emphasized that the Appellant hospital and its doctors cannot be deemed negligent without the referral of the case for expert opinion. The learned State Commission failed to seek expert opinion while determining medical negligence on the part of Appellants, which is contrary to the spirit and mandate of law, established by the Hon'ble Supreme Court in Martin F. D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1. Consequently, the impugned order of the State Commission is not aligned with legal precedent and should be set aside. He relied upon the following precedents to support his arguments: -

a. Nivedita Singh Vs. Dr Asha Bharti & Ors. 2021 SCC Online SC 3165.

b. Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1.

c) Bijoy Sinha Roy Vs. Biswanath Das (2018) 13 SCC 224.

d) Martin F. D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC1.

11.    The learned Counsel for Respondent reiterated the facts of the case in the complaint and fervently argued that in cases of ruptured liver abscess, the life span of the patient is likely to decrease by 7% per hour, as reported in foreign medical journals. The significant delay of almost 36 hours in performing surgery was certain to result in failure, as the condition would spread throughout the body, making recovery unlikely. He questioned why the doctors, upon identifying her as a "liver abscess ruptured into peritoneum, septicaemia, ac. Renal failure…," case did not act immediately, instead waited for nearly 36 hours until her situation became critical and beyond control. He argued that the questions of law raised are baseless and liable to be rejected out rightly. The State Commission issued a comprehensive and well-reasoned order which deserves to be upheld. He relied on V. Kishan Rao v. Nikhil Specialty Hospital, (2010) 5 SCC 513 in support of his arguments.  

12.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

13.    The main issue in the case is cantered on whether the complainant is a consumer and the OPs were negligent in treating the patient who suffered a ruptured liver abscess. The Appellants argued that the impugned order, passed ex parte through virtual hearing, lacks legal sustainability due to procedural irregularities and the absence of an opportunity for the appellants to present their case. The hospital is a Govt institution providing free treatment to the patients. Therefore, she is not a consumer under Section 2(1)(o) of the Act, 1986 and there is no negligence in treating the patient. The learned State Commission failed to give reasonable opportunity to present their arguments and no expert was obtained, which is essential. On the other hand, the Respondent asserted that there was delay of almost 36 hours in performing surgery significantly contributed to her deteriorating condition, and questioned why the doctors did not act immediately upon identifying her critical condition. He argued that the legal questions raised by the Appellants are baseless and that the State Commission's order is well-reasoned and deserving of affirmation.

14.    As regards the issue raised by the Appellants that treatment of a patient in a Govt Hospital providing free treatment will not fall within the definition of a consumer under Section 2(1)(o) of the Act, 1986, this Commission vide order dated 11.04.2013, in FA 260 of 2013 filed against the order dated 21.02.2013 in CC No.29/2013 already dealt with the issue in detail as below:-

“Mr. Manoj Ranjan Sinha, counsel for the appellant is present. He draws my attention to the decision of the Hon’ble Supreme Court in the case of Laxman Thamappa Kotgiri Vs. G.M. Central Railway & Ors. [(2007) 4 Supreme Court Cases 596].

Learned counsel points out that in the above mentioned decision, the issue whether railway employee is a consumer qua the railway hospital, has been directly addressed and decided.

 Learned counsel points out that the State Commission has dismissed the complaint in limine on the sole ground that there is no consumer and service provider relationship between the complainant and the OPs. This issue has been decided in the case of Indian Medical Association Vs. V.P. Shantha & Ors.[1996 6 SCC 651],wherein it was held that:

“similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service under Section 2(1) of the Act.”

The same view has been reiterated by Hon’ble Apex Court in the other decision, as cited by learned counsel, in the case of Laxman Thamappa Kotgiri Vs. G.M. Central Railway & Ors. [(2007) 4 SCC 596], which is as under:- “

There is no dispute that the hospital in question has been set up for the purpose of granting medical treatment to the railway employees and their dependents. Apart from the nominal charges which are taken from such an employee, this facility is part of the service conditions of the railway employees. V.P. Shantha case has made a distinction between non-governmental hospital/nursing home where no charge whatsoever was made from any person availing of the service and all patients are given free service (vide Para 55(6) at p. 681) and services rendered at government hospital/health center/dispensary where no charge whatsoever is made from any person availing of the services and all patients are given free service (vide Para 55(9) on the one hand and service rendered to an employee and his family members by a medical practitioner or a hospital/nursing home which are given as part of the conditions of service to the employee and where the employer bears expenses of the medical treatment of the employee and his family members (para 55(12) on the other. In the first two circumstances, it would not (sic) be free service within the definition of Section 2(1) (o) of the Act. In the third circumstance it would (sic not) be.

Since it is not in dispute that the medical treatment in the said hospital is given to employees like the appellant and his family members as part of the conditions of service of the appellant and that the hospital is run and subsidized by the appellant employer, namely, the Union of India, the appellant case would fall within the parameters laid down in para 55(12) of the judgment in V.P. Shantha case and not within the parameters of either para 55(6) or para 55(9) of the said case.

It is true that the decision in State of Orissa Vs. Divisional Manager, LIC relied upon by the learned counsel for the respondents appears to hold to the contrary. However, since the decision is that of a smaller Bench and the decision in V.P. Shantha case was rendered by a larger Bench, we are of the opinion that it is open to this Court to follow the larger Bench which we will accordingly do.

15.     Based on these precedents, the impugned order passed by the Delhi State Consumer Disputes Redressal Commission in Complaint Case No. 29/13 passed on 21.02.2013 was set aside. The matter was remanded back to the State Commission for a fresh consideration keeping in view the observations of the Hon’ble Supreme Court in the two decisions cited above in the orders. Therefore, the aforesaid argument of the Appellants that, as the Govt hospital was providing free treatment to the patient, she does not falls within the definition of a consumer under Section 2(1)(o) of the Act, 1986 is untenable.

16.    As regards the issue whether there was medical negligence on the part of the Appellants, it is undisputed that the in the instant case, the patient was brought to Central Hospital, Northern Railway, New Delhi and was admitted to the Emergency Ward at 9:00 AM on 18.03.2011. There, Dr. Celestana Dungdung examined her and referred her to surgery ward, where Dr. Pankaj Arora examined her, prescribed certain tests to ascertain her condition and recommended admission to Medical Ward. There she was diagnosed as a "Liver Abscess ruptured into peritoneum, septicemic, ac. Renal failure...." case. It is the allegation of the Complainant that despite critical condition of the patient, necessary surgery was delayed by the medical staff, leading denial of timely intervention. She received minimal attention all along the evening of 18.03.2011 until the afternoon on 19.03.2011. Only around 9:00 PM on 19.03.2011, they recognized the severity of her condition and informed him that immediate surgery was required. At that point, updated investigation reports were unavailable, prompting doctors to operate based on the earlier Aligarh test reports. The situation turned worse when the hospital lacked the required specialty facilities, and the surgeon who operated her was insufficiently competent to handle such cases. After the surgery, she was transferred to ICU and placed on a ventilator. The patient failed to recover and ultimately died on 29.03.2011.

17.    In the case of Dr. Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr., AIR 1969 SC 128 the Hon’ble Supreme Court laid down certain duties of a medical doctor. It was held that:

"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged. In the light of the particular circumstances of each case is what the law requires. 

18.    The Hon’ble Supreme Court in Jacob Mathew v. State of Punjab, (2005) SSC (Crl) 1369 which followed the Bolam’s principles and observed  that:-

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a tendency to blame the doctor for  this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

"25......At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."

19.    In a recent case, the Hon’ble Supreme Court case, Devarakonda Suryasesha Mani v Care Hospital, Institute of Medical Sciences IV (2022) CPJ 7 (SC), it was held as below:

“..2. Unless the appellants are able to establish before this Court any specific course of conduct suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment which was administered to the spouse of the first appellant. In the absence of any such material disclosing medical negligence, we find no justification to form a view at variance with the view which was taken by the NCDRC. Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.”

20.    It is as matter of record that the patient was brought to Central Hospital, Northern Railway, New Delhi at 9:00 AM on 18.03.2011. Dr. Celestana Dungdung examined her at Emergency Ward and referred her to Surgery Ward, where Dr. Pankaj Arora examined her, prescribed certain tests to ascertain her condition and recommended admission to Medical Ward. There she was diagnosed as a case of "Liver Abscess ruptured into peritoneum, septicemic, ac. Renal failure...." Her husband (Complainant) alleged that despite her critical condition, necessary surgery was delayed thereby denying timely intervention. She received minimal attention from evening of 18.03.2011 till the afternoon on 19.03.2011. Only around 9:00 PM on 19.03.2011 her serious condition was recognized the severity of her condition and informed him that immediate surgery was required. As per the Complainant, at that point the updated investigation reports were unavailable, prompting doctors to operate based on the earlier Aligarh test reports. The situation turned worse when the hospital lacked the required specialty facilities, and the surgeon who operated her was insufficiently competent to handle such cases. After the surgery, she was transferred to ICU and placed on a ventilator. The patient failed to recover and ultimately died on 29.03.2011.

21.    After due consideration these assertions, it is undisputed that the patient was already in a critical state when brought to Appellants Hospital on 18.03.2011 with Large Liver Abscess with Rupture and Septicemia, a life-threatening infective condition. Given the urgency of the situation, there was limited time available for conducting even all necessary tests to assess the patient’s medical condition comprehensively. It is the contention of the Complainant itself that the Appellants doctors relied on previous medical test reports at Hospital at Aligarh. This reflects the cognizance taken by OPs of her condition. It is admitted position that, she was received at the Hospital, her condition was assessed, immediately referred for appropriate medical reviews and tests, The Hospital and its doctors took immediate action with the possible resources within the constrained timeframe available. However, in spite of all their actions, including performing surgery, the patient unfortunately succumbed to the conditions.

22.    Notwithstanding the medical history of the patient and the reasons and circumstances under which her condition became critical, it is undisputed that she was brought to Appellants Hospital in critical condition with "Liver Abscess ruptured into peritoneum, septicemic, ac. Renal failure...." at 9:00 AM on 18.03.2011. She was rendered necessary attention, medical review and reference for tests and surgery was performed on her on the next day. Without doubt, her condition deteriorated, she placed on ventilator the next day and died on 29.03.2011. Examination of the facts of the case with respect timelines brought out by the Complainant itself reveal that the Appellant Hospital had taken necessary actions to provide medical attention to the patient who was brought in very critical condition. She was operated upon on the very next day. Mere fact that, after noticing her critical medical condition, without waiting for receiving all the test reports prescribed by them, a Govt Hospital decided to rely upon her previous test reports from a private Hospital in Aligarh, produced by the Complainant is a testimony of the cognizance and effective steps taken by the Appellant Hospital to attend to the patient, without delay. The allegations that the situation turned worse as the hospital lacked the required specialty facilities and that the surgeon who operated her was insufficiently competent to handle such cases are baseless. Merely because a patient brought in critical condition died in the Hospital does not by itself imply negligence. Her recovery chances would have been better, had she been brought in time.

23.     Based on the discussion above, I do not find any negligence on the part of OPs (Appellants) in treatment of the patient. The findings recorded by the learned State Commission are not sustainable in law and, therefore, set aside. Appeal No. FA/733/2021 is allowed.

24.    All pending application, if any, stand disposed of.

25.    The Registry may release the amount, if any due, deposited by the Appellants before this Commission or the State Commission.