Delhi

West Delhi

CC/06/286

RAJENDRA KAUR - Complainant(s)

Versus

PARK HOSPITAL - Opp.Party(s)

29 Aug 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

Complaint Case No.286/06

 

In the matter of:

 

	Rajinder Kaur Widow of Late Sh. Santokh Singh R/o H. no-WZ-241, Gali no. 4 Guru Nanak Nagar, Sahib Pura New Delhi - 110018	Complainant
	Versus
1.	Park Hospital 12, Chaukhandi, Near Keshopur Bus Depot, Outer Ringh Road, New Delhi 110018 Through Chief Medical Officer/And/or Managing Director/Chairman   2. Dr. Chander Prakash      Park Hospital, 12 Chaukhandi,      Near Keshopur Bus Depot,      Outer Ring Road,      New Delhi – 110018   3.  Maharaja Agrasen Hospital       Punjabi Bagh, New Delhi 26 Through Chief Medical Officer Managing Director/Chairman                                                                                   …….. Opposite Parties

 

DATE OF INSTITUTION JUDGMENTRESERVED ON:       DATE OF DECISION      :

24.05.2006 03.08.2022 29.08.2022

 

 

Order passed by Ms. Sonica Mehrotra, President

ORDER

1. Facts germane as culled out in the present complaint for disposal of the same as delineated by the complainant are that the complainant was married to Sd. Santokh Singh (now deceased) in 1999 who was an expert table vadak and worked in renouned Sikh Kirtan Mandlis and was drawing a monthly income of Rs. 15,000/-. He was a healthy 35 yrs old man not suffering from health ailments till September 2004 and used to often travel overseas to perform. He was supposed to travel to England in October 2004 but unfortunately died on 28.09.2004 in OP 3 Hospital after being shifted from OP 1 Hospital where he had undergone tonsillectomy surgery done by OP 2 and it is his death that had given rise to the complaint in as much as the complainant has alleged unpardonable and unforgiveable carelessness and negligence of OPs causing untimely death of her husband. She has stated that in the last week of September 2004 her husband felt some throat pain on 26-09-2004 and visited one Dr.Passi who was in nearby locality. The said doctor advised complainant’s husband to undergo tonsillectomy surgery (removal of tonsils) and asked him to go to Park Hospital (OP 1) as he had good contact with the doctors there and could get some concession for complainant as well. The very next day , the deceased acting on the advice of Dr.Passi visited the OP 1 Hospital at about 10.00 am along with the complainant (his wife) and his brother and cousins. There at OP 1 he was asked to deposit Rs. 7500 as advance money for admission/surgery which he did and was received by OP 1 on 27.09.2004 vide receipt no. 4625. He was then informed by Dr.Chandra Prakash OP 2, doctor of OP 1 that the surgery has to be urgently conducted the same day and got indemnity bond/no risk bond executed from brother and cousins of the deceased on assurance that the surgery is a minor one and the deceased shall be discharged same day itself. Thereafter, after the preliminary tests, the patient was taken to OT around 11.30 am. At around 4.00 pm, OP 2 informed the attendants of the patient that surgery was successful and patient shall be discharged same day by evening but he did not allow the complainant and other attendants to meet the deceased patient on the pretext of patient being unconscious. However, within next 15-20 minutes, OP 2 came to the attendants and told that the deceased has had a severe heart-attack and was being shifted to ICCU of OP 1 and asked the patient’s attendant to take the blood sample of the patient for ABG test urgently  to one Sehgal Nursing Home, Mira Bagh, New Delhi. However, on reaching there, the attendant was told that the said nursing home does not have facility of ABG test which OP 1 is already aware of and therefore refused to take the blood sample and advised the attendant to go to one Kukreja Hospital, Tagore Garden, New Delhi. The attendant then went to the said hospital and gave the sample and after obtaining the test report, came back to OP 1 Hospital at around 6.00 pm when he discovered that the deceased has been shifted to OP 3. Actually, when the attendant was sent by OP 2 with sample of deceased for ABG test, OP 2 had immediately asked the complainant and deceased brother that since the condition of the patient was deteriorating, he has to be urgently shifted to a better management hospital as OP 1 did not have sufficient equipment/facility for his further treatment. The complainant and the kin having no other option to protest at such adverse development, agreed and patient was shifted to OP 3 where initially he was denied admission but on repeated request of the patient’s attendant, OP 3 asked them to deposit Rs. 3,000/- as admission fee which was deposited vide receipt no. 58293 dated 27.09.2004 and patient was admitted for treatment after getting few documents signed from the complainant. Here too, the complainant and other attendants were not allowed to see the patient on the pretext of him being very critical. The next day around 3.00 am one doctor of OP 3 informed the complainant and the attendants that the patient has died and his body shall be handed over only on clearance of dues/remaining fee of Rs. 17,000/- to OP 3. The complainant paid the dues of Rs. 17,000/- to OP 3 on 28.09.2004 vide receipt no. 58336 and only then OP 3 issued a detailed bill and death certificate of the deceased and released his body to the complainant after which the complainant went to OP 1 seeking documents pertaining to the treatment/operation of the deceased but OP 1 refused to give any other treatment related document(s) and it was only after cremation of the deceased that when the complainant family lodged a police complaint against OP 1 at P.S. Khayala, Delhi and police intervened that OP 1 handed over the treatment documents of the deceased to the complainant. Complainant thereafter submitted an application dated 10.10.2004 to OP 3 on 11.10.2004 requesting it to explain what exactly happened with her deceased husband but the officials/doctors of OP 3 did not reply to this application and instead told the complainant that except death summary (already issued) they will not give any other document/paper in this regard. Complainant has submitted that when her husband was admitted in OP 1 and examined by OP 2 pre-operation, his pulse, B/P, heart rate etc. were normal and his heart was healthy and death summary provided by OP 3 reveal that he was shifted from OP 1 to OP 3 after a cardiac arrest for revival by way of resuscitation which reveals that OP 1 was not well equipped with facilities to handle such emergency which emerged either due to anaesthesia or any other reason but still carried out surgery on her husband putting his life to risk and therefore complainant alleged medical negligence on part of OP-1 & 2 which caused death of her otherwise healthy 35 yrs old husband depriving complainant of his company and dependence upon him as sole bread earner for his family comprising complainant and two small daughters then aged 5 and 3 years only. The complainant has therefore filed the present complaint praying for issuance of directions against OPs to pay compensation of Rs. 5,00,000/- towards death of her husband due to negligence of OPs and along with cost of proceedings.Complainant as attached a photograph of the deceased, which was taken a few days before to his death, Photostat copy of the passport of deceased, copy of aforementioned receipt no. 4625, copy of each of requisition slip issued by OP no. 1 and receipt issued by the above said Kukreja Hospital, copy of receipt no. 58293 dated 27.09.2004 issued by OP no. 2, Copy of the receipt no. 58336, bills no. 30131, Death Summary and Death Certificate dated 28.09.2004 issued by OP no. 3, copy of documents pertaining to treatment and/or operation of the deceased at OP no. 1, as given/issued by OP no. 1, copy of complaint dated 30.09.2004 by S. Paramjit Singh to Chowki Incharge, Khyala Police Chowki, Copy of application of the complainant dated 10.10.2004 submitted to the OP no. 3 on 11.10.2004, Copy of birth certificate of Baby Karamjit Kaur & Baby Ishpreet Kaur annexed as (C-I to C-VIII)
2.  Notice was issued to the OPs on 04.07.2006. Appearance was entered into by OP 1 and OP 3 on 09.08.2006 when copies of the complaint with annexures were received by both through their respective counsels. None appeared on behalf of OP 2 despite service and was therefore proceeded against ex-parte on the same date.
3. Written Statement was filed by OP 1 wherein it submitted that the complaint does not disclose any cause of action against Dr. Ajit Gupta of OP 1 for any negligence or deficiency of service. OP 1 had provided the required infrastructure for tonsillectomy done on complainant’s husband and no specific medical, scientific or justified reason for alleging negligence or deficiency of service have been made out either with the respect to the treatment given or at which stage of treatment was OP 1 negligent. The complaint is bad for non-joinder of necessary party as OP 1 is insured under “Professional Indemnity (Medical Establishment) Errors and Ommission Policy” bearing no. 04100/46/04/00813 with United India Assurance Company Limited w.e.f 16.06.2004 to 15.06.2005 for a sum insured of Rs. 10,00,000/- for any one accident. On facts OP 1 admitted the factum of complainant’s deceased husband having been admitted to OP 1 but alleged that he was an obese 35 year old male short statured, short necked and weighing above 100 kgs and was suffering from recurring fever attacks for last 7-8 years. He was advised tonsillectomy to be done on 27.09.2004 under fasting. All pre-operative tests were done viz Hb, BP, CT, TLC, DLC, ESR, Platelet count, Urine routine and micro ECG, X-Ray chest and pre-anaesthetic check-up but a High risk consent was taken for surgery due to patient’s obesity and short and thick neck. Tonsillectomy was done on 27.09.2004 under GA between 12.30 pm to 2.00 pm by Dr.Kalpana Goyal (MD, Anaesthesia) and the patient was thereafter shifted to recovery room. At 3.25 pm i.e.  after about an hour and a half of surgery, the patient developed sweating, restlessness and had a cardiac arrest and immediately a physician and anaesthetist from OP 1 attended to him and resuscitation with ETI and CPR were given and the patient was later on referred to Maharaja Agrasen Heart Institute and Research Centre (OP 3) intubated on ambu support and inotropic support(injection dopamine and adrenaline infusion) for better care and facilities where he was admitted around 6.20 pm in Heart Command  in deeply comatose state with pupils dilated not reacting to light and was put on ventilatory support. RT aspiration showed sign of upper GI bleed and gastric lavage was done. Patient was given necessary medication. His Troponin T (heart test) came positive. At around 12.30 am on 28.09.2004 the patient developed hypotension and bradycardia and suffered a cardio-pulmonary arrest at 2.15 am and despite all life saving measures taken to resuscitate him, he could not be saved and was declared dead at 2.45 am. However, OP 1 maintained that the deceased’s tonsillectomy at OP 1 was done successfully with proper informed consent taken and all doctors have taken proper and due care of the patient in diligence and prudence including OP 2 (MS ENT) and Dr. Kalpana Goyal, MD Anaesthesia. Lastly, OP 1 urged that the matter was referred by Delhi Police to Delhi Medical Council (DMC) which has opined in its opinion dated 31.05.2006 that there was no medical negligence and therefore accordingly no case was registered against OP 1. OP 1 therefore prayed for dismissal of the complaint urging that negligence can not be assumed but has to have direct connection between injury suffered due to treatment given and cited various case laws in this regard in his defence.
4. Written Statement was filed by OP 3 wherein it took the preliminary objection of complainant not being consumer of OP 3 as no privity of contract exist between them and therefore complaint is erroneous for mis-joinder of parties as the patient (deceased) was referred to by OP 1 & 2 to Maharaja Agrasen Heart Institute and Research Centre for treatment which has a separate administrative set up from OP 3 though by mistake the patient was taken to the casualty department of OP 3. OP 3 objected to complaint suffering from non-joinder of parties urging that Dr.Passi and Dr.Kalpana and another doctor who had accompanied the patient when he was referred from OP 1 to OP 3 (as per complainant’s own admission) have not been made parties despite being necessary to the complaint and therefore OP 3 is not a necessary party to the complaint as no cause of action either in favour of complainant or against OP 3 for want of any specific allegations of negligence or deficiency of service has arisen. The complaint is motivated and driven by greed to make money through misuse of Consumer Protection Act despite complainant being in knowledge that the patient had already had a massive heart-attack in OP 1 and despite best efforts in terms of attention and treatment given by professional doctors at OP 3, his life could not be saved. On merits OP 3 urged that as per complainant’s own admission and evidence by medical records of the deceased, he was a known case of Diabetes Type II (DM) and Hypertension (HTN), had been an alcoholic and chronic case of tonsillitis requiring tonsillectomy which was followed by massive heart-attack compounded by septicaemia and that his internal health records (test, investigation, examination) would have revealed his poor health condition but were concealed by the complainant. OP 3 took the defence that during the course of hospitalisation of the patient it was revealed that he had past history of Obstructive Sleep Apnea (OSA), HTN, DM, Alcoholism and hypoxic encephalopathy and his health profile was extremely bad. He was also found to be suffering from septicaemia and which explains why his medical condition could not be controlled/reversed by routine treatment but required urgent surgical procedure. OP 3 admitted that the patient was brought at 6.00 pm to OP 3 intubated in an ambulance in deep comatose state with pupils dilated and fixed and not responding to light or verbal command and deep painful stimuli with conditions of GI bleed /oedema which was a terminal stage of the patient. Nevertheless, a team of doctors at OP 3 did their best in coordinated professional manner in accordance with established medical practice/procedure but unfortunately could not save the patient who died within 8-9 hours of admission (6 pm – 3 am). OP 3 denied the allegation made by complainant of refusal to admit the patient and stated per contra that as per complainant’s own admission she or her relatives were not even present with the patient when he was brought to OP 3 hospital by Dr. Kalpana and another doctor at the casualty/emergency ward of OP 3. The patient was then transferred to Heart Command unit of OP 3 and admitted there by 6.20 pm after necessary admission formalities. The complainant has made vague reference to “some documents” she was made to sign whereas actually given the precarious condition that her husband was brought to OP 3, poor prognosis and very high risk involved that it had to be necessarily explained to the attendants/relatives in writing. OP 3 submitted that given the patient’s condition, the concern of the doctors and medical staff was to focus on the patient absolutely undisturbed in the interest of the patient. Still, the relatives of the patient were informed from time to time of treatment given. The patient was declared dead at 2.45 am on 28.09.2004 and the body was handed over to the complainant and other attendants after completion of formalities as required by procedure and law along with death certificate at about 8 am as is revealed from time printed on bill summary which falsifies allegation of the complainant. The death summary and other treatment records were also supplied to IO of P.S. Tilak Nagar, Delhi where the complainant had lodged a complaint against OPs. Records of the deceased loudly speak and glaringly show that he was brought to OP 3 in a very precarious condition intubated on ventilator support, deeply comatose with dilated/ fixed pupils which shows that he was almost dead when brought but still as per professional demand and consent of relatives of the patient, OP 3 treated him as per well accepted and practiced procedure. Lastly, OP 3 urged that complainant is trying to gain sympathy of this Commission for financial aid from OPs which otherwise is a charitable trust committed to treating BPL(Below poverty line) patients free of cost and therefore prayed for dismissal of the complaint. OP 3 has attached medical treatment records of the complainant’s husband copy of casualty receipt, , copy of Progress Report Sheet at 6.30 pm, copy of Consultation Records dated 27.09.2004, copy of Consultation Records dated 28.09.2004, Copy of Consultation records made at 7.10 pm on 27.09.2004, copy of Progress Report Sheet stating High Risk Consent, copy of Consultation record made at 8.00 pm on 27.09.2004, copy of Progress Report Sheet made at 6.45 pm on 27.09.2004 ,Progress Report Sheet made at 12.30 am on 28.09.2004, Copy of Progress Report Sheet made at 12.30 am on 28.09.2004, Copy of Progress Report Sheet made at 02.15 am & 2.30 am on 28.09.2004, copy of Medication slip, Copy of Consultation record made at 02.45 am on 28.09.2004, copy of admission/discharge summary slip of Maharaja Agrasen Hospital, as annexure R3/1 to R3/15.
5. Rejoinder in rebuttal to defence taken by OP 1 in its written statement was filed by the complainant vide which she submitted that her husband died due to negligence of OP 1 & 2 particularly due to lack of equipment and arrangements of expert doctors to meet such emergency/exigency when such an operation was conducted on her husband and therefore OP 1 & 2 were  compelled to shift him to OP 3. Complainant urged that she had not made any complaint against doctor Ajit Gupta but it is against the CMO/MD of OP 1 who are allowing doctors like OP 2 to conduct operations in their hospital having insufficient facilities thereby putting patient’s life to risk which explains why after OP 2 conducted tonsillectomy on her husband had shifted him to OP 3 due to lack of proper treatment and non-availability of expert doctors to handle such a condition and the delay in proper treatment and shifting to OP 3 caused death of her husband. Complainant submitted that even though she is not much educated and is a poor woman having no means to reach higher laboratories and was under shock of her husband’s sudden death but still the doctors she has consulted later on opined it to be a clear case of medical negligence specially on the part of OP 1 which failed to handle the emergency and refer her husband to OP 3. Complainant urged that OP 1 is not Atul Gupta and that its insurance cover with United India Insurance CO. Ltd. has been revealed in the written statement and therefore complaint is not bad for misjoinder/non-joinder. Complainant denied that her husband was having any comorbid health conditions and states that all his pre-operative tests conducted had come normal and he developed cardiac arrest post tonsillectomy due to negligence of OP 2 and other attending doctors of OP 1 who then wasted time to refer him to OP 3 and getting ABG test despite her husband being in extremely critical condition.
6. Rejoinder in rebuttal to defence taken by OP 3 in its written statement was filed by the complainant whereby complainant urged that she is consumer of OP 3 and has privity of contract with it since her deceased husband was referred by OP 1 to OP 3 and also the fact that complainant paid the requisite admission and treatment charges incurred on her husband to OP 3 for providing services. She submitted that when the complainant’s husband has showed himself to Dr. Passi, he was advised tonsillectomy after the doctor made preliminary enquiry. Complainant denied that OP 3 has a separate administrative set up distinct from MAH Institute and Research Centre or that the complainant’s husband was mistakenly taken to casualty ward of OP 3. OP 3 is a necessary party as her husband was undergoing treatment there and where he died. There exists a professional understanding between OP 2 and OP 3 which is why the patient was referred by him to OP 3 and since OP 3 also could not provide necessary care/medication as such the patient died at OP 3 giving rise to the present complaint against it for negligence and deficiency of service. Complainant further urged that her husband was a case of tonsillitis but not chronic as made out by OP 3 or OP 3’s contention that his internal health condition was not good as all his pre –operative test reports came normal but for diagnosis of tonsillitis. Complainant denied any co-morbid disease of OSA, HTN, DM, Alcoholism or Hypoxic encephalopathy and septicaemia alleged by OP 3 against her deceased husband. She averred that her husband was seen by a doctor at OP 3 at 11.00 pm on 27.09.2004  as claimed by OP 3 whereas the patient was brought to OP 3 at 5.30 pm on 27.09.2004 as per OP 3’s own admission which is contradictory. The patient has reached OP 3 at around 5.30 pm and was accepted/attended by Junior doctor at casualty ward at 6.00 pm and was formally admitted and transferred to ward at 7.00 pm after deposit of admission fee. Facts remains that the patient died because he was not provided with timely and due medical care/medication by OP 3 and attendants were not even allowed to see the patient but were only informed at 3.00 am on 28.09.2004 of his death. The complainants further alleged that when her deceased husband was being shifted to the concerned ward, they were not even allowed to see him nor were informed as to where he was being shifted by OP 3. Complainant alleged that annexure R-3/2 progress report sheet which bears time of 6.30 pm is a manipulated one as the annexure C IV filed by the complainant along with the complaint is the receipt issued by OP 3 which bears time of 18.50 hrs subsequent even to the time of admission (6.20 pm ) as per discharge report. Complainant further alleged that the documents which she was made to sign by OP 3 were on the pretext of starting treatment. Complainant while admitting that the focus of doctors should be on the patient to be absolutely undisturbed but still it is the duty of doctors to treat the attendants who are waiting outside, informed of exact and true state of patient under their treatment which was not done in this case and alleged that OP 3 failed to provide copy of the case file of treatment to the complainant after the death of her husband and even on approaching the local police, OP 3 did not submit complete treatment file. Complainant denied OP 3 having handed over the body of her deceased husband along with DC etc. at 6.00  am on 28.09.2004 and instead submitted that it was only when complainant deposited Rs. 17,000/- as remaining fees that the body was given to her and relatives by OP 3 as per directions of OP 3 for claiming the body. Contrary to OP 3 that the patient was brought to it in almost dead like conditions but still revival efforts were made by OP 3, complainant submitted that one Doctor of OP 3 had properly examined the patient at 11.00 pm on 27.09.2004 as per their own records after being referred by another doctor after a lapse of almost four hours which clearly shows deficiency of service on the part of OP 3. The complainant denied the complaint being motivated to gain financial compensation.
7. Evidence by way of affidavit was filed by the complainant exhibiting documents filed along with the complaint as Ex CW1/1 – CW 1/13 (colly).
8. Evidence by way of affidavit was filed by OP 1 exhibiting copy of Insurance Policy issued in its favour by United India Insurance Company Limited as Ex P-1.
9. Evidence by way of affidavit was filed by OP 1 exhibiting copy of documents filed along with Written Statement as RW 3/1 – RW3/15. Additional evidence by way of affidavit was filed by one Dr. Subhash Gupta, consultant at OP 3 deposing that the patient was brought to the casualty/emergency ward of OP 3 intubated in an ambulance in deep comatose condition with pupils dilated and fixed, not reacting to light or verbal command and deep painful stimuli with condition of GI bleed/oedema and hypoxic ischmic encephalopathy accompanied by doctors of OP 1 and was immediately attended to by cardiologist and several other specialist such as medicine, neuro, ENT etc. of OP 3 in highly co-ordinated  professional manner to save the life of the patient in accordance with standard medical practices relevant to such a case and there was no negligence whatsoever in any respect, in any manner, at any level by any doctor of OP 3.
10.  Written arguments were filed by the complainant intending the grievance against OPs where inter alia she urged that no proper response was given by OP 3 to her application dated 10.10.2004 requesting OP 3 to explain as to what exactly happened with her husband in the intervening night of 27.09.2004 & 28.09.2004 but was simply told that the death summary was self explanatory. Complainant urged that cardiac arrest in such a case as this is generally due to negligence in administering anaesthesia by the attending doctor to the patient as her deceased husband never had a prior heart ailment or blood pressure or any such disease which could possibly lead to a heart attack and it was also never the case of OP  1 too that the deceased had a heart attack due to a pre-existing medical condition and though medically it is true that a cardiac arrest may occur after a patient is given anaesthesia, but if the doctor attending the patient is vigilant and careful, it could be avoided but in the present case the patient suffered cardiac arrest due to negligence of OP 1 and 2 as they were ill-equipped to handle such situation (despite which they proceeded to undertake the operation of tonsillectomy keeping the life of deceased at high risk) and for lack of facilities and equipment, OP 1 & 2 then shifted/referred the patient to OP 3 after he had a cardiac arrest, when considerable time was already wasted and deceased had lost hope of survival. Therefore, this clearly proves that OP 1 & 2 were negligent and deficient in their services. Complainant further argued that OPs have created a false medical history of deceased alleging DM and HTN. Contrary to OP 3’s statement that they had attended the deceased at 6.00 pm, records of OP 1 & 2 revealed that deceased was referred to OP 3 at about 5.00 pm on 27.09.2004 and distance between OP 1 & OP 3 being hardly 5 kms and 10-15 minutes travel time shows that there was some delay in attending to the deceased on the part of OP 3. As revealed from annexure RW 3/2 the deceased was attended by a doctor at 6.00 pm and urgently referred to physician, ENT and Neuro whereas one of the doctors to whom the case was referred has attended the deceased at 11.00 pm as per RW 3/3 which means after five hours of admission and reference despite complainant’s husband case being of a very serious nature needing immediate attention of a specialist. Another doctor had attended to him earlier at 8.00 pm in OP 3 & that too was after two hours of his admission and therefore the delay in attending to the patient by OP 3’s doctors is deficiency of service. Therefore, the complainant urged that for the loss of life of her husband, she should be financially compensated to the tune of Rs.5,00,000/- (five lacs) payable by OPs.
11. Written arguments were filed on behalf of OP 1 wherein it urged that it is undisputed that no expert of view of subject specialist has been taken by the complainant and that the patient was suffering from health aliments prior to tonsillectomy. The defence taken in the written statement was reproduced by OP 1.
12.  Written arguments was filed by OP 3 wherein OP 3 reproduced the case of the complainant and allegations levelled against it by the complainant and rebutted/ counter version that the patient was medically and physically compromised and therefore post tonsillectomy when he had a cardiac arrest, he was given CPR with ETI and shifted to a better care facility hospital OP 3 for further management . OP 3 stated that the attendants of the complainant concealed that the deceased used to take Disprin tablet frequently for heart problem and that OP 3 had advised the complainant and the attendants to get the PMR done post his demise to know the reason of death but the complainant and attendants refused.  OP 3 further submitted that the patient was brought to OP 3 by Dr. Kalpana of OP 1 and a physician at 6.00 pm on 27.09.2004 though he was directed to be brought to MAH Institute and Research Centre (also called Heart Command Centre) and by 6.20 was formally admitted after completion of admission formalities. On payment of Rs.3,000/- which was deposited by complainant at 6.50 pm and all attendants were regularly apprised of condition of deceased and situation was explained. However, despite best efforts to revive him, he died at 2.45 am on 28.09.2004 and body with death certificate was handed over to complainant by 8.00 am or so. Against the bill raised for Rs.31,436/-, complainant was charged only Rs.17,000/- by given discount of Rs.11,436/- on compassionate grounds as the complainant has showed her inability to pay the total bill amount. Lastly, OP 3 urged that no medical opinion has been sought by the complainant to bring out/prove any negligence of OP 3. On the application moved by the complainant and on the request of all parties for obtaining expert medical opinion, the complete case file was referred for expert medical opinion to DDU Hospital vide order dated 19.09.2012. In the intervening period OP 1 placed on record opinion of Delhi Medical Council dated 31.05.2006 on 03.02.2016 before which however OP 1 due to its continuous non-appearance was proceeded against ex-parte vide order 21.12.2015. Medical Opinion of DDU dated 23.11.2016 was received by this Commission soon thereafter. The said medical opinion was given by Medical Board of Experts in meeting held by Committee Members in the chamber of HOD (ENT)which after screening the file found the following deficiencies

1. Patient was operative for tonsillectomy with high risk consent which is an elective procedure.
2. In spite of excessive blood loss during procedure, patient’s monitoring of vitals in the OT are not done between 2.00 pm to 2.45 pm.
3. On receiving the patient in ICU and subsequent monitoring, condition mentioned in notes doe not match the ABG reports.
4. When the patient collapsed it is doubtful whether the patient was put on ventilator, as notes put by different doctor shows assisted ventilation by AMBUBAG.

Thereafter, matter was listed for final arguments since June, 2017 till January, 2020 after which the covid-19 pandemic struck worldwide bringing court proceedings to a halt and in the interim period the erstwhile bench also demitted office and on the current bench taking over November 2021 onwards, the matter was listed on 03.08.2022 for appearance and oral arguments. Counsel for complainant appeared along with complainant in person and addressed oral arguments alleging medical negligence against all OPs placing reliance on the medical opinion from DDU Hospital which has highlighted deficiencies on the part of OP 1 & 2 primarily though complainant voluntarily submitted that her husband has brought almost dead from OP 1 to OP 3 on 27.09.2004 which was concealed from her. None appeared on behalf of OPs & despite, they having been proceeded ex-parte by the erstwhile bench were still granted opportunity to address arguments till the end of day i.e. 4.00 pm however, none appeared and the matter was reserved for orders by the end of day’s business.

13. We have heard the arguments / rival contentions forwarded by both parties and have thoroughly perused the case file and applied on judicial mind to the facts and documents placed on record. On perusal of the entire record of the case, the pleadings of the concerned parties, their respective affidavit and evidence and written as well as oral arguments forwarded by them, the case now falls for adjudication/verdict and we therefore proceed to record our observation and finding overall merit of the case as would appear in the forgoing and following paras of this order.

1. The factum of surgery conducted on complainant’s husband for tonsillectomy by OP 2 in OP 1 Hospital on 27.09.2004 and post-op complications of cardiac arrest compelling OP 1 & 2 to refer the patient to OP 3 that same evening is not in dispute as also the death of complainant’s husband at OP 3 hospital on   28.09.2004 at 2:45 am. The dispute arose as complainant alleged medical negligence, lack of duty of care, expertise and reasonable skill of attending doctors all of which contributed/led to her husband’s untimely demise. The medical records viz OPD ticket, prescriptions, progress report, & screened by us & in chronology of occurrence records filed by all parties reveal that initially the deceased Santokh Singh, husband of the complainant aged 35 years  presented himself at OP 1 with complaints of difficulty in swallowing, pain in throat and fever with snoring at night of and on since last 15-16 years and was a hypertensive patient on BP medication and had controlled levels. He was diagnosed as a case of chronic tonsillitis by OP 1 on admission at 10.35 am on 27.09.2004 and after preliminary pre-operative diagnostic tests was operated for tonsillectomy by OP 2 under GA done on high risk consent taken from the complainant on 27.09.2004 . The anaesthetist notes in OT prepared by Dr. Kalpana, MD Anaesthesia made during the procedure from 12.30 to 2.00 pm show that the patient had no history of DM, BP, CAD, TB or any allergy, the vitals were normal and no abnormality was detected in any pre-operative test of blood/urine, KFT, blood sugar and he remained stable throughout the surgery. There was a blood loss of about 400 ml and post-operatively i.e. till about 2.00 pm, the patient was conscious, comfortable, able to follow verbal commands and breathing spontaneous adequately with vitals continuing to be normal and was put on IV fluids and shifted to ICU at 2.45 pm after haemostasis achieved and patient found stable during watch for 30 minutes post-operation in OT. However, at 3.25 pm i.e. about one and half hours post-operative there was an urgent call received from ICU as the patient has become unconscious with BP and pulse unrecordable and the patient was attended at 3.30 pm by anaesthetist and physician at OP 1. The patient was immediately intubated and cardiac resuscitation was initiated with injection adrenaline and atropine with CPR and DC shock given to the patient but the spontaneous heart activity came with irregular heart rate. CPR was discontinued and ventilation with AMBUBAG for oxygen was continued BP levels were very high and oxygen level fluctuating between 92%-94% and pupils were semi-dilated but reacting to light, ECG was done and blood sample was sent for ABG investigation. The progress records between 4.30 pm – 4.40 pm reveal that systolic respiration by AMBUBAG was being given, patient was not responding to painful stimuli systolic BP was 100 mg/Hg. The patient was referred at around 5.10 pm to be shifted to OP 3 by one Dr. Arora, MD, OP 1, he was intubated on ambubag and was received at 6.00 pm by OP 3 in a state of ventricular tachycardia followed by cardiogenic shock, hypoxic encephalopathy, hypotension and sudden cardio respiratory arrest post-operative tonsillectomy.The patient was put on ventilator & as the admission/discharge report of OP 3 reveals, he was admitted to the casualty ward of OP 3 at 6.20 pm with high risk consent given by the brother of the deceased in view of critical condition and risk to life of the patient. The blood test report conducted on him at OP 3 showed extremely high levels of TLC, blood ammonia, SGOT, SGPT, creatinine, Uric acid. ABG report show extremely high levels of PO₂ (partial oxygen) pressure of 563.3 mm/Hg as against normal limit of 80-100 which is indicative of respiratory failure and normally occurs in 22% - 50% of patients on ventilator support in ICU. The patient was diagnosed on the basis of ABG report by OP 3 to be suffering from metabolic acidosis with respiratory alkalosis. He was shifted to ICU at around 6.30 pm. The progress report sheet/consultation record of OP 3 made at 6.45 pm show that Ryle’s tube was inserted and GI bleed of about 100 ml was diagnosed and gastric lavage was done on the patient in the gastroenterology department of OP 3 .CT head was advised when stable, 7.10 pm notes reveal that the patient was on ventilator with central nervous system comatose and pupils semi-dilated not responding to light, the complainant’s brother had informed doctors of patient’s past history of alcohol use but abstinence since last few years. The patient was suffering from GI bleed and gastric lavage was done at 7.30 pm, he continued to be comatose and not responsive with gaspic respiration. He continued to be on inotropic support and antibiotics and attendants have been fully explained the condition and chances of immediate mortality and long term complication. The patient was attended at 8.10 pm by a doctor of OP 3 referred from cardio I to ENT I for ENT check-up post cardiac arrest/cardiogenic shock with endotracheal tube inserted and oropharangeal investigation revealed blood stain secretion with oedematous uvula and tonsillar fossa showing oedema. At about 11.00 pm, the patient continued to be on ventilator, deeply comatose both pupils dilated and fixed and no response to deep painful stimuli. He was diagnosed to be suffering from hypoxic ischemic encephalopathy and grave prognosis was explained. His troponin T test was positive suggestive of acute cardiac failure. The patient started deteriorating rapidly. At 12.30 am on 28.09.2004 he developed hypotension with ventricular tachycardia, shocks were given along with medication and prognosis was very poor. Between 1.30 am–2.00 am his general condition remained critical while being on ventilator and at 2.15 am the monitor showed TTI spikes and occasional ectopic beating. The general condition became very very critical and CPR was initiated at 2.30 am his B/P and pulse rate were not recordable and at 2.45 am he was declared dead as monitor showed straight line. Night report in the consultation records of OP 3 reveal that around 6.00 am the dead body of complainant’s husband along with death certificate was handed over to the complainant and the kin of the deceased. The final Hospital bills no. 30131 of OP 3 show the run date and time as 28.09.2004 8.07 am with admission date & time 27.09.2004 6.20 pm and discharge date and time 28.09.2004 8.06 am. In the light of the pleadings and rivals stands of the parties and sequence of events is unfolded between 27.09.2004 & 28.09.2004 dealt with exhaustedly in the forgoing paras, the question arising for consideration is whether there was any deficiency or negligence on the part of OP 1 & 2 treating Hospital and operating surgeon respectively in (i) conducting tonsillectomy surgery on the complainant’s husband and post-operative care/treatment given to him in the perspective of OP 1 own case/defence of an already health-wise compromised patient with comorbid conditions of short statured, short neck, obesity with OSA and HTN with DM (ii) cause of septicemia and cardio respiratory arrest following tonsillectomy leading to death of complainant’s husband in OP 3 (iii) whether there was negligence on the part of OP 3 in alleged failure to attend promptly to such a critical patient brought on ventilator/life-support with cardio respiratory failure and lack of duty of care if any.
2. The question as to how and by which principle, the court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts /advice given by him/her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctor’s medical advice/treatment (oral or operation) is no longer res integra and settled long back by the series of English decisions as well as decisions of Hon'ble Supreme Court. Negligence per se is defined in Black’s Law Dictionary as: conduct, whether of action or omission, which may be declared and treated as negligence without any arguments or proof as to the particular surrounding circumstances, either because of violation of statute / ordinance or because of being palpably opposed to common prudence that no careful person would have been guilty of. The classic exposition of law on this subject was first laid down in a decision of Queens Bench in the leading case of Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582 (often referred to as the Bolam Test) in which Mc. Nair J. explained the law as:  “where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if the exercise the ordinary skill of an ordinary competent man exercising that particular art.” The said law laid down in Bolam’s case is consistently followed by courts worldwide as being correct principle of law known as Bolam Test.  A careful reading of Bolam case shows that the standard of ‘reasonableness’ is implicit in the test. There may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent”. The aforesaid principle has been reiterated and explained by Bingham L.J. in his speech in Eckersley Vs. Binnie (1998) 18 Con LR 1“Professional Man should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitation on his skill. He must bring to any professional task he undertakes no less expertise, skill and care then other ordinarily competent members of his profession would bring, but need bring no more. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet”. 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. Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.(cf.Halsbury’s Laws of England 4^thEdn.Vol.26 Pg.17-18).” Lord Atkin’s speech in Andrews Vs Director of Public Prosecution (1937) A.C. 576 about lack of care distinguished from very high degree of negligence to create civil liability has been followed by Hon'ble Supreme Court in Bhalchandra @ Bapu Vs State of Maharashtra AIR 1968 SC 1319 and Syad Akbar Vs State of Karnataka (1980) 1 SCC 30 holding that the negligence to be established must be culpable or gross and not negligence merely based upon an error of judgment The Hon'ble Supreme Court in its Three Judge Bench judgment in the case of Jacob Mathew Vs. State of Punjab III (2005) CPJ 9 SC examined the law laid down in Bolam test and held that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial. The only assurance which such a professional can give or impliedly be given is that he is possessed of requisite skill in that branch of profession practiced by him while undertaking the performance of task entrusted to exercise his skill with reasonable competence and this is what the person approaching him can expect. The Hon'ble Supreme Court further observed in the Jacob Mathew judgment that different doctors have different approaches, some have more radical while some have more conservative approaches. All doctors cannot be fitted in to a strait-jacketed formula, and cannot be penalized for departing from that formula. Hon'ble Lordships further observed that simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. Hon'ble Supreme Court in Martin F. D’Souza Vs Mohd Ishfaq  (2009) CPJ 32 (SC) held on lines of Lord Denning’s important observation made in Hucks Vs Cole (1968) 118 New L J 469 by Sachs LJ that “a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of other. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. In Derr V. Bonnev, 231 p 2d 637, Wash. 1951, the Court’s definition of negligent treatment is an excellent statement of the general definition of a physician’s legal responsibility in treatment:

1. Before a physician or surgeon can be liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by these standards.
2. In order to obtain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and further, that the doctor failed to follow the method prescribed by that standard.
3. It is not required that physicians and surgeons guarantee results, nor that the result be what is desired.
4. The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence.

In Roe and Woolley Vs Minister of Health (1954) 2 QB 66, Lord Justice Denning said “it is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by unavoidable risks. Every surgical operation is attended by risks. We cannot take the benefit without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. We should be doing a dis-service to the community at large if we were to impose liability on Hospitals and Doctors for everything that happens to go wrong.” What amounts to medical negligence on the part of medical professional has been considered by Hon'ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole AIR 1969 SC 128, Achyutrao Haribhau Khodwa Vs State of Maharashtra (1996) 2 SCC 634, Spring Meadows Hospital Vs Harjot Ahluwaliya (1998) 4 SCC 39, Indian Medical Association Vs V. P. Shantha (1995) 6 SCC 651, Poonam Verma Vs Ashwin Patel (1996) 4 SCC 332, State of Haryana Vs Smt. Santra (2000) 5 SCC 182, Savita Garg Vs Director, National Heart Institute (2004) 8 SCC 56, ratios of which are not being referred to unburden our opinion but certainly legal position settled therein would be our guiding force.

In the landmark judgment of Kusum Sharma and Ors. Vs Batra Hospital and Medical Research Centre and Ors. I (2010) CPJ 29 (SC), the Hon'ble Supreme Court, while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view inter alia:

1. Negligence is the breach of the duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do
2. Negligence in an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not negligence merely based upon error of judgment
3. the medical profession is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable decree of care neither highest nor very low and competence to be judged in light of particular  circumstances of each case
4. a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. in the realm of diagnosis and treatment there is a scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor
6. the medical professional is often called upon to adopt a procedure which involves higher elements of risk but which he honestly believed as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his / her suffering which did not yield desire results may not amount to negligence
7. negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck
9. It is our bounden duty and obligation of civil society to ensure no unnecessary harassment or humiliation of medical professionals so that they can perform their professional duty without fear and apprehension
10. The medical practitioner at times also have to be saved from such a class of complainant’s who used criminal procedure as a tool for pressurizing medical profession / hospital for extracting uncalled for compensation which malicious proceedings deserve to be discarded
11. Medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence in the interest and welfare of the patient   which should be paramount

The Hon'ble National Commission has been consistently following the settled law as aforementioned in landmark judgments passed by it on the topic of “medical negligence” viz Pratap Singh Vs Sahib Nursing Home and Surgical Centre in F.A. no. 1038/2000,Dinesh Kaushal & Ors. Vs Dr. K.K. Khurana III (2002) CPJ 297 (NC), Mam Chand Vs. Dr. G.S. Mangat of Mangat Hospital I (2004) CPJ 79 (NC) and Deepak Kumar Satsangi (Dr.) VsSanjeevan Medical Research Centre Pvt Ltd. III (2016) CPJ 96 (NC) and Dr. Sanjay Gadekar Vs Sangamitra @ Sandhya Khobragade in F.A. No. 484/2015 passed on 20.05.2016.

To succinctly bring the rival contention in to focus after having exhaustively dealt with the law on medical negligence, it may be stated in brief that the complainant is alleging medical negligence on the part of OPs in treating her husband who had undergone tonsillectomy at OP1 for reported problems and negligence in post-operative care by OPs as well as failure to discharge duty of care all of which led to his  untimely death. In Bolitho Vs City and Hackney Health Authority (1996) 4 ALL ER 771, House of Lords held that the course adopted by medical practitioner must stand a test to reason “the court is not bound to hold that a defendant doctor escapes liability for negligence just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment or diagnosis accorded with sound medical practice. The court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. Hon'ble Justice S. B. Sinha in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee III (2009) CPJ 17 (SC) has preferred Bolitho test to Bolam test and redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. Hon’ble Apex Court held that the charge of professional negligence on a medical person is a serious one which affects his professional status and reputation and as such the burden of proof would be more onerous.  A doctor cannot be held negligent only because something has gone wrong of for any mischance / misadventure / error of judgment in making a choice between two options the mistake in diagnostic is not necessarily a negligent diagnosis. The decisions also says that the court should take into account patient’s legitimate expectation from the hospital or the concerned specialist doctor of due care from point of admission to his discharge and review of his condition thereafter. In P.B. Desai Vs State of Maharashtra (2013) 15 SCC 481, the ‘Duty of Care’ which a doctor owes towards his patient has been clearly explained by Hon'ble Supreme Court as follows: “once It is found that there is ‘duty to treat’ there would be a corresponding ‘duty to take care’ upon the doctor qua his patient of ethical / legal character arising in a contractual relationship. Ethical ‘duty to treat’ on the part of doctor is clearly covered by Code of Medical Ethics 1972, Clause 10 of which captions “Patient must not be neglected.” Therefore the Hon'ble Supreme Court implied by the said judgment that duty of care of treating doctor did not end with surgery but post-operative care as well. The Hon'ble National Commission echoed the said view in P.D. Hinduja National Hospital and Medical Research Vs Mrs Veera Rohinton Kotwal II (2018) CPJ 342 (NC) in which it held that “Duty of Care” does not end with surgery. The Hon'ble Supreme Court in Arun Kumar Manglik Vs Chirayu Health and Medicare Pvt. Ltd. III (2019) CPJ 1 (SC) laid emphasis on “Patient Centric Approach” and observed that “Standard of Care” as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts.

In Maynard Vs West Midlands Regional Health Authority [1985] 1 All ER 635, the words of Lord President (Clyde) in Hunter Vs Hanley 1955 SLT 213 were referred and quoted by Lord Scarman who held: “A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exist a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”  

A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs Dhanwanti Kumar II (2019) CPJ 41 SC held that negligence has to be decided on the touch stone whether the treating doctor adheres to normal practice of medical parlance and opined that suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering from any such ailment as a result of improper performance of surgery and that to with the degree of negligence on the part of doctor is another thing. To prove the case of a negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient. Lord Clyde in Hunter Vs Hanley stated that “in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proven to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care”. The Hon’ble National Commission in HardwariLal v/s Dr. A K Aggarwal and Dr. Anil Kumar Aggarwal v/s HardwariLal (iv) (2017) CPJ 218 (NC observed that it is trite that an error of clinical judgment does not perseamount to negligence and the true test for establishing negligence in diagnosis or treatment on the part of doctor is whether he has been proved to be guilty of such failure, as no doctor of ordinary skill would be guilty of, if acting with ordinary care. A doctor’s professional function may be divided into three phases; (i) diagnosis (ii) advice (iii) treatment. The courts in United Kingdom in Gibbons v/s Harris (1924) (i) DLR 923 and Everett v/s Griffiths [1920] 3KB observed that the primary duty of a medical practitioner is to “diagnose the patient’s condition” by making enquiries and exercising remarkable professional skill in forming a conclusion from such enquiry and held that failure to exercise due skill in diagnosis as a result of which wrong treatment was given amounts to negligence. Therefore, it needs little emphasis that proper and timely diagnosis being the key deciding paradigm for the line of treatment of a patient anything going a miss at that stage is a critical circumstance to determine the question whether or not an error of judgment in treatment of patient tantamounts to negligence. The Hon’ble National Commission in the said judgment after appreciating and examining the prescription slips held that there was no ‘diagnostic dialogue’, held treating doctor negligent in treating the patient.  With this brief prologue on the importance of diagnosis, we advert to the facts at hand. Admittedly, complainant’s husband was diagnosed as a case of tonsillitis (acute as per OP 1) when he had shown himself to OP 1 on 27.09.2004 with reported problems of throat pain, pain in swallowing and of and on fever since 15-16 years with history of snoring at night, hypertension, obesity for all of which reasons as per OP 1 & 2’s own admission a high risk consent was taken for conducting tonsillectomy. Now referring to the medical opinion given by DDU Hospital that it is an elective procedure and the fact that patient being a high risk one as per OP 1 & 2, call for tonsillectomy becomes highly debatable  a call taken by OP 1 & 2. The medical treatment records filed by all parties reveal that the surgery under GA was commenced by OP 2 at OP 1 around 12.30 pm on 27.09.2004 and got over at 2.00 pm and the patient was watched for next half an hour and was shifted to ICU at 2.45 pm. However, there are no records of post-operative monitoring, if any of the complainant from 2.00 pm till 3.25 pm when there was an urgent call received from the ICU of patient having suffered a cardio respiratory arrest when his B/P and pulse were not recordable and CPR was initiated and with some cardiac resuscitation achieved albeit heart activity with irregular heart rhythm, the complainant’s husband was shifted to OP 3 from OP 1 around 5.30 pm on ventilator ambu support. A high risk patient as complainant’s husband suffering cardiac arrest barely an hour and a half post tonsillectomy which is otherwise considered to be a minor surgery constitutes a ‘medical emergency’. In fact, in such a situation the post-operative care to be  taken by the treating doctors/operating surgeon of such a high risk patient assumes much more significance.From the absence of post-operative bed head ticket or progress notes pertaining to the patient from 2.00 pm till 3.25 pm at OP 1, it can be inferred that OP 1 & 2 did not discharge their duties of post-operative duty of care expected out of them especially in a high risk patient regardless of surgery having been a minor and uneventful one & The Hon’ble National Commission in Pushpa Vyas v/s Dr. Sajjan Daga was dealing with complaint regarding alleged negligence in treatment of abdominal injuries due to road accident wherein delay in referral was alleged to have caused death of patient. The Hon’ble National Commission observed that since the hospital and the treating doctor failed to follow the basic protocol required through pre-operative test for thorough understanding of such a case of trauma, the surgery by way of exploratory laparotomy should have been undertaking only pursuant to the said diagnostic tests and therefore, held doctor liable for act of negligence.

Thus appropriate care of a compromised patient entails a multi-disciplinary effort with speed and efficacy with proper co-ordination of the initial core team to make quick rational decisions with thorough understanding of the case of trauma.

The Hon’ble Supreme Court in P.B. Desai v/s State of Maharashtra & Anr. Viii (2013) SLT 51=IV (2013) DLT (Crl.) 464 (SC)=IV (2013) ACC 68 (SC)=IV (2013) CCR 37 (SC)=(2013) 15 SCC 481, while discussing the doctor patient relationship and the responsibilities that emerged therefrom observed as follows:

“Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief:

1. To continue to treat, except under certain circumstances when doctor can abandon his patient;
2. To take reasonable care of his patient;
3. To exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available.”
4. Not to undertake any procedure beyond his control: This depends on his qualification, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.
5. Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.

Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent rights and duties, forming the basis of liability of a medical practitioner. Due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of any other service provider. The concept of a doctor-patient relationship forms the foundation of legal obligations between the doctor and the patient.

41. When reasonable care, expected of the medical professional, is not rendered and the action on the part of the medical practitioner comes within the mischief of negligence, it can be safely concluded that the said doctor did not perform his duty properly which was expected of him under the law and breached his duty to take care of the patient. Such a duty which a doctor owes to the patient and if not rendered appropriately and when it would amount to negligence is lucidly narrated by this Court in Kusum Sharma and Others v/s Batra Hospital and Medical Research Centre and Others; (2010) 3 SCC 480. The relevant discussions there from are reproduced herein below:

“45. According to Halsbury’s Laws of England, 4^thEdn., Vol. 26 pp. 17-18, the definition of negligence is as under:

22. Negligence- Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

In the aforenoted judgment of the Hon’ble Supreme Court the first responsibility of a doctor towards the patient was not to undertake any procedure beyond his control. The Hospital could have referred the patient immediately to a higher management centre, If their basic equipment like the Ultrasound Machine was not functioning.

The Hon'ble National Commission in Srikanth Srikande Vs Sunshine Hospital II (2019) CPJ 482 NC held in a case where surgery was done without taking pre-operative safety measure and pre investigative test and death of a young patient age 36 years occurs due to cardiac arrest that the hospital and treating doctor were jointly and severally liable for not having adhered to standards of normal medical parlance and the onus for explaining reasons for sudden development bradycardia with hypotension was not explained or supported or any documentary evidence. The Hon’ble National Commission relied upon the judgment of Hon'ble Supreme Court in Vinitha Ashok Vs. Laxmi Hospital I (2002) CPJ 4 (SC) (Supra) in which the Hon’ble Apex Court observed the skill of medical practitioners, referred to the following case laws:

This court in Achyut Haribhau Khodwavs State of Maharashtra &Ors., 1996 (SLT Soft) 1000=1996 (2) SCC 634, had occasion to examine the test for determining negligence of reasonable skill, knowledge and care in the matter of performing his duties by a medical practitioner. After referring to the decision in Bolam v. Friern Hospital Management Committee (supra), and Rogers v. Whitaker, (1992) 109 ALR 625 (though reported in 1993 Australian Law Journal Reports Vol. 67 part (2) 47), wherein the High Court of Australia has held that the question is not whether the doctors conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law and that is the question for the Court to decide and the duty of deciding it cannot be delegated to any profession or group in the community. Thus there has been divergence of view between Bolam’s case (supra), and Rogers’s case (supra). In Sidaway Vs Board of Governors of Bethlem Royal Hospital, (1985) 1 AII ER 643, the House of Lords examined the principle of Bolam’s case and had accepted it as applicable to diagnosis and treatment in England. This Court in Laxman Balakrishnan Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, 1969 (1) SCR 206, has held as under:

“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, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.”

The aforesaid principle has been reiterated by this Court in A.S. Mittal v. State of U.P., 1989 (3) SCC 223.

In Indian Medical Assn. v. V.P. Shantha, 1995 SCC (6) 651,Hon’ble Apex Court approved the following passage from Jackson and Powell on Professional Negligence:

“The approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.’’ In the instant case, Srikande case facts and verdict can be applied in as much as in the case before us, no reasons were given in progress note/record for patient developing cardiac arrest or brady cardia post operation. The onus of explaining the reasons for sudden development of ventricular tachycardia and septicemia and eventual cardio respiratory arrest subsequent to surgery is not explained or supported by any documentary evidence. To reiterate, proper post-operation evaluation was not done by OP 1 & 2 and moreover proceeding with such a high risk surgery & leaving the patient unattended post-operation does not amount to ‘duty of reasonable care’ which ought to have been exercised in such a serious circumstance. In this regard, we deem fit to place reliance on the judgment of Savita Garg Vs National Heart Institute IV (2004) CPJ 40 (SC) in which Hon’ble Supreme Court has laid down the principle that the onus is on the hospital to explain as to why a situation occurs. In the present case a patient before us who was taken for surgery at 12.30 pm on 27.09.2004 at OP 1 became critical at 3.30 pm, barely one and half hours post-opertion suffering from cardio respiratory arrest and had to be put on ventilatory support and shifted to another hospital, OP 3 at 6.00 pm in comatose condition pupils semi-dilated and fixed and not responding to light nor body responding to painful stimuli where he eventually died at 2.45 am on 28.09.2004 on account of cardio respiratory arrest, hypoxic encephalopathy and septicaemia. The onus, therefore, shifts on OP 1 & 2 to explain the reason for patient’s death. It is well settled that in a situation where medical negligence is alleged, the importance of medical record cannot be undermined. However, we have observed that there are no post-operative medical records pertaining to complainant’s husband        maintained at OP 1 as is evident from the documentary evidence placed before us and the casual approach of the doctors in question for not having adhered to standards of normal medical parlance is writ large for their failure to attend the patient post-operative having left him unattended for more than an hour in ICU despite him being a high risk patient and despite doctors being on call duty on 27.09.2004 and conduct of the operating surgeon i.e. OP 2, his efficiency, capability and degree of skill, care and knowledge become highly questionable in view of the post-operative life threatening complication which the complainant’s husband eventually succumbed to barely 12 hours post-surgery and absence of OP 2 and his defence on such a grave case handled by him which required specialized skill that a senior specialist anesthetic and specialist surgery was expected to display and more so in such a case which badly required it but was not exercised. The Hon’ble National Commission in Parag Girish Chandra Desai Vs Dr. Ashokbhai C. Shah III (2019) CPJ 158 (NC) observed in a case of alleged medical negligence where a young patient aged 28 years complaining of fever and abdominal pain died of septicemia three days subsequent to the treatment rendered by treating doctor that it was a case of wrong diagnosis wherein the treating doctor failed to explain as to how sepsis had set in and that the duty of care which ought to have been taken was not taken. In this case the Hon'ble National Commission further observed that it is settled law in catena of judgments passed by Hon'ble Supreme Court, especially recent judgment of Maharaja Agrasen Hospital vs Master Rishabh Sharma and Pooja Sharma Vs Maharaja Agrasen Hospital I (2020) CPJ 3 (SC) wherein the Hon'ble Supreme Court held that a court is not bound by the evidence of expert, which is advisory in nature and that expert opinion is not always mandatory or binding and that the consumer for a can base on facts and circumstances of each case and the evidence placed on record, adjudicate the matter on such basis. The Hon'ble Supreme Court in Ramesh Chandra Aggarwal vs Regence Hospital Ltd. IV (2009) CPJ 27 (SC) and State of HP Vs Jai Lal held that the court must derive its own conclusion after carefully sifting through the medical record, and whether the standard protocol was followed in the treatment of the patient. The duty of expert witness is to furnish the Court with the necessary scientific criteria to the facts proved by the evidence of the case. Whether such evidence could be accepted or how much weight should be attached with it is for the Court to decide as held by the Hon’ble Apex court in Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee III (2009)  CPJ 17 (SC). In the Parag (supra) case, Hon'ble National Commission observed that despite the patient having continuous fever and abdominal pain and his repeated visits to the treating doctor for such problem, no proper diagnosis given by the treating doctor and such an act on the part of the treating doctor was per se negligence and the view taken by the Hon'ble National Commission to disregard the report of the medical board constituted by AIIMS was accepted by the Hon'ble Supreme Court in Rishabh (supra) case. In the case before us too, the medical records and pleadings reveal that the complainant’s husband was only operated for tonsillitis on 27.09.2004 and suddenly barely one and half hours post-operative and 12 hours prior to demise at 2.45 am on 28.09.2004, he became a patient of acute cardio respiratory arrest which condition could not have developed all of a sudden but facts remain that the patient was not monitored post-operative in ICU of OP 1 on 27.09.2004 2.00 pm onwards till he suffered a cardiac arrest at 3.25 pm otherwise why did the patient suddenly ventricular tachycardia followed by cardio respiratory arrest post-surgery (tonsillectomy) and died due to cardio respiratory arrest. Death rate following tonsillectomy is one in thirty thousand, an order or magnitude short of the risk of being struck by lightening. Focus on first 24 hours of care for respiratory events following tonsillectomy is crucial as onset of respiratory compromise occurs in less than 15 hours of surgery while the patient is sleeping/unconscious OSA abnormality in ventilator control gives patient a narrower reserve of PaCO₂ between empnoea and apnaeic threshold indicating greater respiratory control instability therefore drop of PaCO₂ causes a decrease in central drive and a further drop in upper airway tone.This may take oxygen desaturation beyond the point of no return resulting in silent death. The ABG report of the complainant’s husband post-operative showing low level of PaCO₂ and extremely high level of PO₂are self-explanatory in this light. This explains such adverse observations as made against OP 1 & 2 in the medical opinion pertaining to lack of monitoring of the patient post-operation. The Hon’ble National Commission in Dr. Sudhir Mohan Kant Vs Ramadhar Singh and Ramadhar Singh Vs Dr. Sudhir Mohan Kant III (2018) CPJ 488 (NC) held in a case where a patient suffered hypoxia brain injury post-anaesthesia given for conducting total abdominal hysterectomy and subsequent death of patient who otherwise had no abnormality either in brain or abdomen that doctor did not perform his duty which was expected from him under common medical parlance as a result of which complainant lost love and affection of his wife who was only 50 years old and mother of three unmarried children. The Hon’ble National Commission in Pankaj R. Toprani Vs Bombay Hospital and Research and Medical IV (2019) CPJ 546 (NC) held in a case where post-operation surgery patient suffered convulsion, bradycardia attack and brain injury leading to vegetative state that the onus is on the hospital and treating doctors to explain the reasons for occurrence of bradycardia which occurred post-operation when the patient was in ICU that duty of care does not end with surgery and due care and caution which ought to have been taken with respect to ventilation of patient post-operation and in a timely manner was not exercised and directed hospital and doctor to compensate the complainant. Another crucial observation/adverse inference drawn by the Medical Board of DDU against OP 1 & 2 is that it is doubtful whether the patient was put on ventilator or as notes reveal, he was on assisted ventilation by AMBUBAG The progress records between 4.30 pm – 4.40 pm reveal that systolic respiration by AMBUBAG was being given, patient was not responding to painful stimuli systolic BP was 100 mg/Hg. The patient was referred at around 5.10 pm to be shifted to OP 3 by Dr. Arora, MD, OP 1 intubated on ventilator state and was received at 6.00 pm by OP 3 in a state of ventricular tachycardia followed by cardiogenic shock, hypoxic encephalopathy, hypotension and sudden cardio respiratory arrest post-operative tonsillectomy. The Hon’ble National Commission in Toprani (Supra) judgement have also given observations on AMBU BAG (big valve mask) which is a manual resuscitator or “self-inflating bag” and is a hand held device commonly used to provide positive pressure ventilation to patients who are not breathing adequately. The defending hospital in Toprani case which had put the patient suffering convulsions on AMBU BAG defended itself on ground that it is sufficient and no necessity of portable ventilator was required. The Hon’ble National Commission raised a question of the effectiveness of AMBU BAG in a patient requiring better care that a patient who was on drip and breathing with support of AMBU BAG can not be construed to be in a very stable condition. AMBU BAG is used within the hospital for temporary ventilation and during emergency cardiac care which is normally used for transport within the hospital area, but it is not a suitable device for accurate ventilation and therefore an unstable patient in ICU requires due care and caution with respect to ventilation especially keeping in view that the cause of bradycardia which the patient develop was never explained and the patient slipped into coma. In the present case, medical records reveal that the patient was on AMBU BAG support when he was shifted from OP 1 to OP 3 after having suffered cardio respiratory arrest and bradycardia and was comatose. The AMBU BAG was not a sufficient respiratory aid as was required at such a critical juncture when he was brought to OP 3. We disregard the medical opinion of the Delhi Medical Council dated 31.05.2006 guided by a five Judge Bench of the House of Lords ruling in Bolitho (supra) case of words of Lord Browne-Wilkilson who opined that despite a body of profession opinion approving the doctor’s conduct, a doctor can be held liable for negligence if it is demonstrated that the professional is not capable of withstanding logical analysis. The Hon’ble Delhi SCDRC in the case of Krishna khatri Vs Balaji Hospital Pvt. Ltd. I (2020) CPJ 19 (Del.) was dealing with a similar case a death of 11 year old child for alleged wrong treatment given by treating doctor and error of pre-operative and post-operative management by surgeon and anesthetist in which the Hon’ble SCDRC observed that there were contradictory findings recorded on treatment paper and continuous monitoring of patient required to check his condition was not done as a result of which the boy suffered stoppage of respiratory system (asphyxia) which lead to his death and held the treating doctors and hospital guilty of medical negligence.

 In the light of detailed discussion and exhaustive judicial discourse on the issues arising in the present complaint, we may now advert to the merits of the case, in the light of the elaborate medical jurisprudence analysis keeping in view the factual matrix of the case. The complainant lost her 35 year old husband and had been relentlessly fighting for justice since last 17 years. A Seven judge bench of the UK Supreme Court in Montgomery Vs Lanarkshire Health Board [2015] UKSC 11 held that “patients are now widely regarded as persons holding rights, rather than as passive recipients of the care of the medical profession” and the Hon’ble Apex Court in Arun Manglik (supra) case held that standard of care must evolve in consonance with its subsequent interpretation adopted by English and Indian Courts. The Hon'ble Supreme Court in Agrasen Hospital (supra) case observe that the cause of action for negligence arises only when damage occurs and such injury/damage must be sufficiently proximate to the medical practitioner breach of duty by an act of omission or commission by a medical professional of ordinary prudence and the standard to be applied for adjudging negligence would be that of an ordinary competent person exercising ordinary skill in the profession which is neither very high nor very law degree of care and competence. Negligence becomes actionable on the account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’. In the present case in hand, we find all these three components of negligence present viz dereliction of duty on the part of the senior anesthetist and senior  surgeon (OP2)  of OP 1 despite being on call duty and aware of the gravity of situation of health of complainant’s husband but still did not monitor him post-operation after which the complainant’s husband died. It is well established that a hospital is vicariously liable for the acts of negligence committed by doctor engaged or empanelled to provide medical care. If the hospital failed to discharge to their duty through doctor, being employed on job basis or on contact basis, it is the hospital which has to justify the act of commission or omission on behalf of their doctors.

Let us examine the role and cause of action, if any, qua OP 3 where the complainant’s husband was brought as referral from OP 1 by OP 3 on 27.09.2004. The compilations of documents placed on record by OP 3 reveal that he was brought from OP 1 around 6.00 pm on 27.09.2004 and was admitted in its Heart Command at 6.20 pm as per the admission/discharge record and the patient was intubated on ambu support and inotropic support on referral from OP 1 where he had undergone tonsillectomy and suffered cardiac arrest post-operation and was resuscitated and referred to OP 3 for further management. His pulse and B/P were high, patient was deeply comatose with pupils dilated not reacting to light or deep painful stimuli. He being a high risk patient, risk to life and chances of immediate mortality and long term complication were explained to the complainant and the attendants by the attending doctor one Dr. Bharat of OP 3. From 6.30 pm when he was put on ventilator and shifted to ICU of OP 3, the patient continued to be critical and deeply comatose his ABG report revealed metabolic acidosis with respiratory alkalosis, he was suffering from GI bleed and his troponin T test was positive suggestive of acute cardiac failure. He was referred to the Neurology as well as Gastrology department of OP 3. His TLC were very high 19500 against normal range of 4500-11000 and extremely high lever enzyme levels with high uric acid, Creatinine. Subsequently, he developed hypoxic ischemic encephalopathy around 11.00 pm and grave prognosis was explained to his relatives and complainant. Between 12.30 am on 28.09.2004 and 2.30 am, his condition steadily deteriorated, he developed ventricular tachycardia, CPR and DC shock were initiated. Between 2.30-2.45 am, his pulse and B/P were not recordable and monitor showed straight line signifying death. The cause of death was acute cardiogenic shock with cardiopulmonary arrest. Day and night records of OP 3 reveal that the kin of the patient including complainant were duly informed during the entire course of his admission. The sequence of events on keen examination of records in our considered view exhibit that the complainant’s husband was actually brought to OP 3 from OP 1 at 6.00 pm in an almost brain dead situation where his vitals were only being mechanically managed through ambu support which in any case was an insufficient source of ventilation for such a critical and compromised patient. He was brought in a deeply comatose pupils dilated and fixed not responding to light or stimuli which was a very grave and imminent mortality situation. Nonetheless, he was shifted to ICU of OP 3 on ventilator around 6.30 pm and was administered the standard protocol, medication and treatment by OP 3 for the next eight hours but the patient continued to be critical and slipped into death from an already comatose situation in the next eight hours i.e. around 2.45 am on 28.09.2004. We have no hesitation therefore in coming to the conclusion that no veritable culpability can be attributed to OP 3 qua complainant’s husband for any medical negligence or lack of duty of care or delay in treatment and therefore we exonerate OP 3.

For all the above noted reasons, we are therefore of the considered opinion and have no hesitation in arriving at the conclusion that the OPs 1 & 2 were seriously amiss in treating the complainant’s deceased husband for that he was operated for tonsillectomy to when he became critical post-operation from 22.06.2007 to 29.06.2007 when he finally lost his life. Had the senior surgeon OP 2 and anesthetist Dr. Kalpana present in the OT used their discretion whether to undertake such a high risk surgery for an already compromised patient and procedure being elective, the situation may have been different or complainant’s husband may have survived or tolerate the surgical intervention with better post-operation care. We rely on the judgment by The House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell in Whitehouse vs Jordon and Anr (1981)1 All ER 267 in which it held that the test whether a surgeon has been negligence is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of ordinary skilled surgeon exercising the professing to have the special skill of a surgeon. Therefore, for lack of diligence, duty of care and incorrect diagnosis, medical negligence stands prove against the OPs for having failed to adhere to call of duty and reasonable post-operative care. The question now surviving for consideration is as to what adequate compensation the complainant is entitled to for loss of her husband who was only 35 years of age. The grant of compensation to remedy the wrong of medical negligence is no longer res integra isbased on the principle of restitutio in integrum which provide that a person entitled to damages which should as merely as possible get that sum of money which would put him in the sme position as he would have been if he had sustained the wrong [Livingstone vs Rawyards Coal Company (1880) LR 5 AC 25 (HL)] followed by our Hon’ble Apex Court in Balram Prasad Vs Kunal Saha IV (2013) CPJ 1 (SC) and Krishna Kumar vs State of Tamil Nadu 2015 (9) SCC 388 in which the Hon’ble Apex Court held that the sum of money must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and sufferingundergone and the liability that he/she would have to incur due to the loss caused by the event. In our consider view, having regard to the finding the medical negligence in the instant case occurred in 2004 and the litigation has been pending before this Commission over 17 years it would serve end of the justice to appropriately, compensate the complaint commensurate with the agony, pain and suffering that the complainant have faced due to untimely death of Santokh Singh and battling for justice for all these years. The laws is watch dog and not a blood hound and since the complainant has fully established her case of medical negligence against OP 1 & 2 in terms of providing facta probanda and facta probantia. Since no formal application was moved by OP 1 for impleading United India Insurance Company Ltd. and on perusal of records we observed that barring just one letter written by OP 1 to Insurance Company intimating it of the subject matter, no steps were taken by OP 1 for getting the same pleaded before this Commission nor was this issue ever pressed by OP 1 for which reason the Insurance Company was never arrayed as a necessary party in the complaint and therefore liability cannot fasten on the Insurance Company and has to be squarely born by OP 1. In view thereof we direct we direct the OP 1 & 2 to pay an amount ofRs. 5,00,000/- (five lakhs) to the complainant. Let the order be complied with by OPs within 30 days from the date of receipt of copy of this order.

41. Let a copy of this order be given to each party free of cost on proper application to the Registry of this Commission as per Regulation 21 of the Consumer Protection Regulations, 2021 .
42.   File be consigned to record room.
43.   Announced on 29.08.2022.

 

 

 

(Richa Jindal) Member

(Anil Kumar Koushal) Member

(Sonica Mehrotra)        President