KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NOS.1003/04, 1015/04 & 1020/04
COMMON JUDGMENT DATED:09..03..2011.
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPEAL NO.1003/04
The Manager,
Ashwini Hospital, : APPELLANT
Kannur.
(By Adv:Sri.George Cheriyan Karippaparambil)
Vs.
1. Smt. Parvathikutty.K, (DIED)
W/o Velayudhan,
Near Congress Mandiram,
Pappinissery.
(By Adv.Sri.Sheji.P.Abraham)
2. Dr.P.P.Kunhiraman,
Eye Specialist, ‘Darsana’, Talap,
Kannur.
(By Adv.Sri.T.K.Girijan)
3. Branch Manager,
New India Assurance Co. Ltd.,
Near Muncipal Bus stand, Kannur-1. :RESPONDENTS
Addl. Respondents.
4. Velayudhan,
H/o late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
5. Manikandan,
S/o late late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
6. Manjusha,
D/o late late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
APPEAL NO.1015/04
New India Assurance Co. Ltd.,
Near Muncipal Bus stand, Kannur-1
R/by its : APPELLANT
Manager, Regional Office, Ernakulam.
Vs.
1. Smt. Parvathikutty.K, (DIED)
W/o Velayudhan,
Near Congress Mandiram,
Pappinissery.
(By Adv.Sri.Sheji.P.Abraham)
2. Dr.P.P.Kunhiraman,
Eye Specialist, ‘Darsana’, Talap,
Kannur
(By Adv.Sri.T.K.Girijan).
3. The Manager,
Ashwini Hospital,
Kannur.
:RESPONDENTS
(By Adv:Sri.George Cheriyan Karippaparambil)
Addl. Respondents.
4. Velayudhan,
H/o late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
5. Manikandan,
S/o late late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
6. Manjusha,
D/o late late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
APPEAL NO.1020/04
Dr.P.P.Kunhiraman,
Eye Specialist, ‘Darsana’, Talap,
Kannur. : APPELLANT
(By Adv.Sri.T.K.Girijan).
Vs.
1. Smt. Parvathikutty.K, (DIED)
W/o Velayudhan,
Near Congress Mandiram,
Pappinissery.
(By Adv.Sri.Sheji.P.Abraham)
2. The Manager,
Ashwini Hospital,
Kannur.
:RESPONDENTS
(By Adv:Sri.George Cheriyan Karippaparambil)
3. Branch Manager,
New India Assurance Co. Ltd.,
Near Muncipal Bus stand, Kannur-1
Addl. Respondents.
4. Velayudhan,
H/o late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
5. Manikandan,
S/o late late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
6. Manjusha,
D/o late late Parvathikutty.K, Nalloor,
Manju Nivas, Mannangode,
Palassery, Palghat.
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above 3 first appeals are preferred from the order dated:20th September 2004 of the CDRF, Kannur in OP.488/96. The complaint in the said OP.488/96 was filed by the 1st respondent in these appeals as complainant (Smt.Parvathikutty.K) against the appellants in these appeals as opposite parties 1 to 3. The 1st opposite party is Dr.P.P.Kunhiraman, Eye Specialist, ‘Darsana’ , Talap, Kannur. The 2nd opposite party is the Manager, Ashwini Hospital, Kannur and the 3rd opposite party is the Branch Manager, New India Assurance Company Ltd., Kannur. The aforesaid complaint was filed alleging deficiency of service and medical negligence on the part of Dr.P.P.Kunhiraman in doing the cataract operation in the left eye of the complainant and in the further treatment and procedures adopted and followed by the 1st opposite party. The 2nd opposite party, the Manager, Ashwini Hospital, Kannur has been made vicariously liable for the negligence and deficiency of service of the 1st opposite party who conducted the surgical procedures and treatment for the cataract to the left eye of the complainant at the 2nd opposite party Ashwini Hospital, Kannur. The 3rd opposite party, Manager, New India Assurance Company Ltd, Kannur was made a party to the complaint on the basis of the contentions adopted by the 1st opposite party, as the 1st opposite party had a professional indemnity policy issued by the 3rd opposite party, New India Assurance Company Ltd.
2. Before the Forum below, the 1st opposite party, Dr.P.P.Kunhiraman entered appearance and filed written version disputing the alleged medical negligence and deficiency of service. He contended that the complaint is not maintainable; that the complainant had not availed any service on consideration; that the cataract surgery and the other surgical procedures and treatment were conducted by the 1st opposite party as part of the Free Eye Camp conducted by the Charitable Service Organisations by name ‘Karunya’, Jiant’s International, Kannur Branch and Sumithran Aron Memorial Trust, Pappinissery; that the complainant is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act; that the complaint is bad for non joinder of necessary parties as the voluntary organizations who conducted free eye camp are necessary parties to the complaint; that the 1st opposite party had a professional indemnity policy covering the professional risk and so the insurer of the said policy M/s New India Assurance Company Ltd, Kannur is a necessary party. The 1st opposite party has also contended that the surgical procedures were undertaken by the 1st opposite party with utmost care and caution and there was no sort of medical negligence or deficiency of service in performing the surgical procedures and the medical treatments. It was further contended that the 2nd opposite party provided the medical facilities for doing surgical procedures and treatment in Ashwini Hospital and that the said services were provided by the 2nd opposite party free of cost. Thus, the 1st opposite party prayed for dismissal of the complaint.
3. The 2nd opposite party, the Manager Ashwini Hospital, Kannur entered appearance and filed written version denying the alleged deficiency of service. It was contended that there was no negligence or deficiency of service on the part of the 2nd opposite party in providing the facilities to the 1st opposite party in performing the surgical procedures and medical treatment; that the 2nd opposite party had not received any consideration for the said facilities from the 1st opposite party or from the complainant; that the complainant is not a consumer coming within the purview of the Consumer Protection Act, 1986. Thus, the 2nd opposite party prayed for dismissal of the complaint filed against them.
4. The 3rd opposite party, Branch Manager, New India Assurance Company Ltd, Kannur was impleaded based on the contentions adopted by the 1st opposite party. The 3rd opposite party entered appearance and filed written version denying their liability to indemnify the 1st opposite party for the surgical procedures and treatment undertaken by the 1st opposite party in the 2nd opposite party Ashwini Hospital, Kannur. The 3rd opposite party/insurance company contended that there was no contract with the 2nd opposite party/Ashwini Hospital; that the indemnity issued in favour of the 1st opposite party, Dr.P.P.Kunhiraman cannot be extended to the 2nd opposite party/Ashwini hospital; that the indemnity policy was issued for the treatment undertaken by the 1st opposite party from his clinic by name Darsana Eye Clinic Talap, Kannur-2; that the temporary arrangement if any made between the 1st and 2nd opposite party is not covered by the professional indemnity policy issued by the 3rd opposite party in favour of the 1st opposite party. Thus, the 3rd opposite party prayed for dismissal of the complaint.
5. The complainant, Parvathikutty.K subsequently filed interlocutory application for amendment of the complaint in OP.488/96. By the said amendment, the complainant sought for the amendment of the complaint to incorporate the averment that the complainant had consultation with the 1st opposite party, Dr.Kunhirman at his residence on 3/9/95 and 8/9/1995 and the complainant had paid a total consideration of Rs.1,900/- to the 1st opposite party and thereby alleged that the 1st opposite party rendered service to the complainant on consideration and that the complainant is a consumer coming within the ambit of the Consumer Protection Act, 1986. The aforesaid amendment sought for was opposed by the opposite parties 1 to 3 by filing counter statement to the said amendment application. After hearing both parties, the Forum below allowed the amendment sought for and thereafter the complainant filed a complaint incorporating all the present allegations in the complaint in OP.488/96. The opposite parties had also filed additional versions.
6. Based on the pleadings of the parties to the said complaint, the Forum below raised the following issues:-
1. Whether the complaint is maintainable?
2. Whether the complainant is entitled to get compensation? If so, the quantum?
7. Before the Forum below, PWs 1 to 4 were examined on the side of the complainant. Exts.P1 to P16 documents were also marked on the side of the complainant. The 1st opposite party Dr.P.P.Kunhiraman was examined as DW1. Exts.B1 to B4 documents were marked on the side of the opposite parties. Acknowledgement for free treatment and operation issued by the ‘Karunya’ Charitable Organisation was marked as Ext.X1. PW1 is Dr.S.Balasubramaniam, Director of Sri Kanchi Kamakoti Medical Trust, Natraj hospital Sankara Eye Society, Coimbatore. Ext.P1 medical certificate was marked through PW1. PW2 is the complainant, Parvathikutty, PW3 is a witness examined on the side of the complainant. She deposed that she served the complainant as a bystander in Ashwini hospital while the complainant was admitted in that hospital after cataract surgery. PW4 is the husband of the complainant. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:20/09/2004 directing the opposite parties 1 and 2 to pay compensation of Rs.3 lakhs to the complainant with cost of Rs.2000/-. The opposite parties 1 and 2 are made jointly and severally liable to pay compensation. The issue regarding the liability of the 3rd opposite party to indemnify the 1st opposite party has been left open to be decided between the opposite parties. Aggrieved by the said order, the 1st opposite party filed the present Appeal No.1020/04; that the 2nd opposite party filed the Appeal No.1003/04 and that the 3rd opposite party filed the Appeal No.1015/04.
8. We heard the appellants and the respondents in these appeals. These 3 appeals are heard together as these appeals are preferred from one and the same order passed by CDRF, Kannur in OP.488/96. During the pendency of these appeals the 1st respondent/complainant Smt.Parvathikutty.K died and her legal representatives are impleaded in these appeals as additional respondents 4 to 6. The additional 4th respondent is the husband of late Parvathikutty and the additional respondents 5 and 6 are the son and daughter of late Parvathikutty.K. They were impleaded as per the order dated:16/8/2010 passed by this commission in I.A.Nos.590/2010, 591/2010 and 592/2010.
9. The learned counsel for the appellants submitted their respective arguments based on the grounds urged in the memorandum of the present appeals. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for the additional respondents 4 to 6 (legal heirs of the deceased 1st respondent/complainant, Parvathikutty.K) supported the impugned order passed by the Forum below and prayed for dismissal of the present appeals.
10. Based upon the pleadings and submissions of the parties to these appeals the following points arise for consideration.
1. Whether the complaint in OP.488/96 can be held as maintainable and that the complainant therein can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986?
2. Whether the 2nd opposite party/Ashwini hospital, Kannur (appellant in A-1003/04) can be made liable for the alleged medical negligence and deficiency of service on the part of the 1st opposite party/Dr.P.P.Kunhiraman (appellant in A-1020/04) in doing the surgeries and medical treatments for the original complainant, Parvathikutty.K?
3. Whether there was any consumer and service provider relationship between the complainant/Parvathikutty.K and the 2nd opposite party/Ashwini Hospital, Kannur?
4. Whether the 1st opposite party Dr.P.P.Kunhiraman (appellant in A.1020/04) can be made liable for the alleged medical negligence and deficiency of service in doing the surgical procedures and the medical treatment for the complainant, Parvathikutty.K at the 2nd opposite party/Ashwini Hospital, Kannur.
5. Whether the Forum below (CDRF. Kannur) can be justified in leaving the issue as to whether the 3rd opposite party (the Branch Manager, New India Assurance Company Ltd, Kannur) is liable to compensate the 1st opposite party?
6. Whether there was any deficiency of service on the part of the 3rd opposite party in not indemnifying 1st opposite party/Dr.P.P.Kunhiraman under the professional indemnity policy issued by the 3rd opposite party/New India Assurance Company Ltd. in favour of the 1st opposite party/Dr.P.P.Kunhiraman?
7. Is there any sustainable ground to interfere with the impugned order dated:20th September 2004 passed by the CDRF, Kannur in OP.488/96.?
11. For the sake of convenience and also for avoiding confusion the parties to these appeals are referred to in this judgment according to their rank and status before the Forum below in OP.488/96.
12. Points 1 to 3:-
There is no dispute that the complainant/Parvathikutty.K. approached the 1st opposite party/Dr.P.P.Kunhiraman for matured cataract to her left eye. She had the first consultation in the free eye camp conducted by the charitable organizations by name ‘Karunya’, Jiant international Kannur Branch and Sumithra Aron Memorial Trust, Pappinissery. It is come out in the evidence of the complainant as PW2 and that of PW4, the husband of the complainant that the complainant/Parvathikutty had also approached the 1st opposite party, Dr.P.P.Kunhiraman in his clinic by name ‘Darsana’, Talap, Kannur. It is also deposed that the complainant approached the 1st opposite party in his house and that on one occasion she paid Rs.100/- as consultation fee and a further sum of Rs.1800/- for doing the cataract surgery for her left eye.
13. The 1st opposite party Dr.Kunhiraman as DW1 has categorically deposed that he is running a clinic by name ‘Darsana’ and he used to collect fee from patients. It is also an admitted fact that the1st opposite party/Dr.P.P.kunhiraman had some arrangement with the 2nd opposite party/Ashwini hospital, Kannur and on account of the said arrangement the 2nd opposite party/ Ashwini hospital, Kannur provided the medical facilities to the 1st opposite party/Dr.P.P.Kunhiraman for doing the cataract surgeries and the medical treatments at the 2nd opposite party/Ashwini Hospital. The evidence, both oral and documentary would show that the complainant and her husband approached the 1st opposite party for her matured cataract to the left eye and the complainant had the cataract surgery to her left eye done by the 1st opposite party, Dr.P.P.Kunhiraman. It is also come out in evidence that the complainant had her consultation and treatment at the eye clinic of the 1st opposite party and that the 1st opposite party had advised the complainant to have the scanning and as a result the complainant had also approached the 1st opposite party with the scan report. It is on the specific advice and direction of the 1st opposite party that the complainant as admitted in the 2nd opposite party/Ashwini hospital for her cataract surgery and that she had her cataract surgery done by the 1st opposite party at the 2nd opposite party/Ashwini hospital.
14. There is no ground to disbelieve the case of the complainant that she availed the services of the 1st opposite party on payment of consideration. The mere fact that there occurred some inconsistencies and contradictions regarding the payment of fees to the 1st opposite party cannot be taken as a ground to hold that the complainant availed the services of the 1st opposite party free of cost. Even otherwise, the 1st opposite party categorically admitted acceptance of fees (considerations) from other patients who have been treated from his clinic by name ‘Darsana’ eye clinic. The complainant, Parvathikutty had also approached the 1st opposite party at his eye clinic, Darsana on various days and it is based on the advice given from the eye clinic, the complainant was admitted at 2nd opposite party, Ashwini hospital and had the surgeries and medical procedures and treatments. Thus, in all respects it can be concluded that the complainant is a consumer coming within the ambit of the Consumer Protection Act, 1986. As far as the complainant and the 1st opposite party are concerned, the relationship between them can be considered as ‘consumer’-‘service provider’ relationship. So, the Forum below can be justified in entertaining the complaint prepared by the complainant as consumer.
15. The complainant as PW1 has categorically deposed that she is not claiming any compensation from the 2nd opposite party for the alleged negligence and deficiency of service on the part of the 1st opposite party. It is to be noted that the complainant has no case that she paid any consideration or fee to the 2nd opposite party/Aswini hospital for having the surgeries and procedures and medical treatments at the 2nd opposite party/Ashwini hospital. It is further to be noted that the specific case of the complainant as PW1 is that the 1st opposite party was negligent in doing the surgery and medical treatment. She has no case that the 2nd opposite party was negligent or deficient in rendering service to the complainant. She has also no case that she paid any fee or consideration to the 2nd opposite party for the service she availed from the 2nd opposite party. Thus, it can be seen that there was no consumer-service provider relationship between the complainant and the 2nd opposite party/Ashwini hospital.
16. The 1st opposite party in his written version has no case that he was employed by the 2nd opposite party or that there was master and servant relationship between the 2nd opposite party and the 1st opposite party/Dr.P.P.Kunhiraman at the relevant time when the complainant was treated at the 2nd opposite party hospital. The 2nd opposite party Ashwini hospital in their written version categorically contended that the 2nd opposite party provided free facilities to the 1st opposite party to have the medical facilities for doing the surgeries and treatments. It is specifically contended that the said facilities were provided free of cost. The 1st opposite party as DW1 has categorically admitted that he was not an employee of the 2nd opposite party and that there was no employee – employer relationship between himself and the 2nd opposite party. He further admitted the fact that the2nd opposite party provided the medical facilities for doing the surgical procedures and treatment and the said facilities were provided free of charge. If that be so, the 2nd opposite party cannot be made vicariously liable for the medical negligence or deficiency of service on the part of the 1st opposite party/Dr.P.P.Kunhirman.
17. There is nothing on record to show that there was employer-employee relationship or master and servant relationship between the 2nd opposite party, Ashwini hospital and the 1st opposite party Dr.P.P.Kunhiraman. In such a situation, the Forum below cannot be justified in making the 2nd opposite party liable for the negligence and deficiency of service on the part of the 1st opposite party. More over, there is no case for the complainant that the 2nd opposite party/Ashwini hospital was negligent or deficient in rendering service. The complainant has also no case that she availed the services of the 2nd opposite party on payment of fee or consideration. Thus, there cannot be any vicarious liability on the 2nd opposite party for the negligence or deficiency of service of the 1st opposite party, as there was no master and servant or employer-employee relationship between the 2nd opposite party, Ashwini hospital and the 1st opposite party, Dr.P.P.Kunhiraman. So, the 2nd opposite party/Ashwini hospital is to be exonerated from the liability to pay compensation to the complainant. The finding of the Forum below making the 2nd opposite party (appellant in A.1003/04) jointly and severally liable to pay compensation along with the 1st opposite party is liable to be set aside. Hence we do so. These points are answered accordingly.
18. Point Nos.4 to 7:-
The complainant alleged medical negligence and deficiency of service on the part of the 1st opposite party, Dr.P.P.Kunhiraman. Admittedly, the complainant had undergone surgery for matured cataract on her left eye. The aforesaid cataract surgery was done by the 1st opposite party. It is an admitted fact that subsequent to the cataract surgery during the post operative period, the complainant had conjuctival Haemorrhage and there was Hyphaema ie, blood collected in the anterior chamber due to conjuctival haemorrhage. According to the 1st opposite party the Hyphaema and conjuctival haemorrhage was noticed on 14/9/1995. Admittedly, the complainant was admitted by the 1st opposite party in the 2nd opposite party hospital for cataract surgery on 9/9/95 and the cataract surgery was conducted on 10/9/1995. Ext.B1 case sheet and other medical records would show these aspects. The case sheet would also show that the complainant was subjected to various pre-operative investigations and evaluation and only after the said pre-operative examinations, the cataract surgery for her left eye was performed. It is true that intra vocular lens was implanted during the cataract surgery and the complainant regained vision to her left eye. The entries in the case sheet and the relevant medical records would show that the cataract surgery to her left eye performed by the 1st opposite party was successful.
19. There is no dispute that on 14/9/95 there occurred conjuctival haemorrhage and hyphaema. The collection of blood in the anterior chamber would suggest vetreious haemorrhage. There was also mild cornial oedema due to bleeding in the anterior chamber. According to the 1st opposite party the aforesaid haemorrhage and collection of blood in the anterior chamber occurred due to post traumatic intra vocular bleeding. The cause for the post traumatic intra vocular bleeding was suspected as (1) inadvertent hit on the left eye with the complainant’s own or some other’s finger or hand. (2) Rubbing with the hand as a result of some irritation. (3) Pressure over the pillow and (4) spontaneous.
20. The case sheet would also suggest the possibility of accidental or inadvertent hit on the left eye of the complainant by the bystander, the husband of the complainant who is totally blind. The fact that the complainant’s husband is totally blind and he accompanied the complainant to the 2nd opposite party hospital is not disputed. At any rate, it can be concluded that the post traumatic intra vocular bleeding occurred due to the injury by hitting or due to the spontaneous intra vocular bleeding. There is nothing on record to show that the said haemorrhage and bleeding occurred on account of the negligence of the 1st opposite party who conducted the cataract surgery on the complainant.
21. There can be no doubt about the fact that the burden is upon the complainant to prove the alleged negligence on the part of the doctor who conducted the surgery or treated the patient. But the complainant has not adduced any evidence to prove the alleged negligence or deficiency of service on the part of the 1st opposite party, Dr.P.P.Kunhiraman who performed the surgical procedure and the treatment.
22. From the side of the complainant, PW1, Dr.S.Balasubramaniam was examined. Ext.P1 certificate dated:12/11/97 issued from Kanchi Kama Koti Medical Trust, Natraj Hospital Sankara Eye Soceity has been proved through PW1. He is the Director of the Kanchi Kama Koti Medical Trust, Natraj Hospital Sankara Eye Soceity. P1 certificate issued by PW1, Dr.S.Balasubramaniam would only show that the vision to the left eye of the complainant has been lost and that the complainant will not be benefited by medical or surgical procedures. P1 certificate would show that there is no perception of light for the left eye of the complainant. But there is no whisper in P1 certificate that the vision to the left eye of the complainant has been lost on account of the negligence or deficiency of service on the part of the 1st opposite party, Dr.P.P.Kunhiraman who conducted the cataract surgery to the left eye of the complainant on 10/9/95. P1 certificate is not at all sufficient to prove the case of the complainant regarding negligence on the part of the 1st opposite party.
23. A careful scrutiny of the testimony of PW1 Dr.S.Balasubramaniam would suggest that there is possibility for having post traumatic bleeding. He deposed that post traumatic bleeding is a known complication of cataract surgery. He has also deposed about the possibility of causing post traumatic haemorrhage due to accidental hit or injury to the operated eye. But one thing is clear that there is nothing in the testimony of PW1, the eye surgeon examined on the side of the complainant suggestive of negligence on the part of the eye specialist who conducted the cataract surgery on the complainant’s left eye.
24. The other witnesses viz, PWs 2 to 4 are not having any expertise or competency to speak about the negligence in doing cataract surgery. There is also no documentary evidence available on record to substantiate the case of the complainant that there was negligence on the part of the 1st opposite party in doing the cataract surgery on the complainant.
25. The 1st opposite party who detected post traumatic haemorrhage and collection of blood in the anterior chamber has done the necessary medical procedures. He also conducted another surgery for removal of the blood collected in the anterior chamber and thereby to regain vision to the left eye of the complainant. He also prescribed necessary medicines for improving the condition of the left eye of the complainant.
26. PW1, the eye specialist examined on the side of the complainant has also admitted the fact that the 2nd surgery performed by the 1st opposite party was a necessary surgery and the procedure followed by the 1st opposite party in doing the 2nd surgery and prescribing medicines and administering the same are the proper procedures. Thus, the evidence on record would show that the 1st opposite party, Dr.P.P.Kunhiraman had taken all the necessary precautions and preventive measures to save the vision to the left eye of the complainant. The available materials on record would negative the case of the complainant that there was negligence on the part of the 1st opposite party in performing the surgical procedures on the complainant.
27. The 1st opposite party in his written version has categorically admitted that the complainant came with her totally blind husband for the surgery. It is also stated in the written version that the complainant and her husband were instructed to bring a competent and efficient bystander to look after the complainant after her surgery. According to the 1st opposite party the complainant came with her blind husband and there was no other bystander to look after the complainant after her surgery. It is also the case of the 1st opposite party that strength of the qualified nurses in the 2nd opposite party was not enough for providing personal and individual attention to the complainant especially after the surgery. In such a situation it was incumbent upon the 1st opposite party to insist the complainant or her husband to bring an efficient bystander to look after the affairs of the complainant (patient) after the surgery. On finding that the complainant is not accompanied by a bystander, the 1st opposite party ought not to have done the surgery. It was a fault on the part of the 1st opposite party in doing the surgery and keeping the complainant after the surgery without a proper bystander. It was the duty of the 1st opposite party to see that proper nursing care is given to the complainant after her surgery. But in fact, the 1st opposite party was deficient in rendering service to the complainant. It can be concluded that the 1st opposite party committed a lapse or mistake in permitting the complainant to stay in the hospital with a bystander who was totally blind. The admission made by the 1st opposite party for the probable cause of post operative haemorrhage is also to be considered at this juncture. On a consideration of the entire situation, it can be concluded that the post operative traumatic haemorrhage and the resultant bleeding in the anterior chamber of the left eye occurred due to the accidental or inadvertent injury caused to the left eye.
28. It is pertinent to note at this juncture that the 1st opposite party specifically deputed a qualified nurse to provide individual attention to the complainant after the 2nd surgery. The aforesaid precautionary steps ought to have been taken by the 1st opposite party after the first cataract surgery. Thus, it can very safely be concluded that the 1st opposite party was deficient in rendering service to the complainant by not providing adequate and necessary nursing care to the complainant. So, the Forum below can be justified in finding negligence and deficiency of service on the part of the 1st opposite party, Dr.P.P.Kunhiraman by not providing necessary nursing care to the complainant. It can also be concluded that the aforesaid deficiency of service resulted in causing post traumatic haemorrhage to the left eye and ultimately it resulted in loss of vision to the left eye of the complainant.
29. The complainant Parvathikutty died during the pendency of these appeals. Her legal heirs and representatives are impleaded in these appeals as additional respondents 4 to 6. The additional 4th respondent is the husband of the complainant. It is to be noted that the additional 4th respondent Velayudhan is totally blind and he alone accompanied the complainant for her treatment and surgery at the 2nd opposite party hospital. It is also come out in evidence that the complainant’s husband alone had come to the 1st opposite party along with the complainant for the previous consultations. The additional respondents 5 and 6 are the grown up children of the complainant. There is nothing on record, to show that these additional respondents 5 and 6 or any one of them accompanied the complainant for her cataract surgery. But they were not prepared to assist their mother when she was in dire need of the assistance of her children. The additional 4th respondent, Velayudhan was also negligent in not bringing suitable bystander for the complainant. The complainant was also equally negligent in coming to the hospital for cataract surgery without a proper bystander. Thus, it can be seen that the complainant and her legal heirs were also negligent in the matter. It is only because of their negligence the untoward incident of post traumatic haemorrhage and the resultant bleeding in the anterior chamber of left eye of the complainant occurred. So, the complainant and her legal heirs are to be held guilty of contributory negligence. Unfortunately, the Forum below failed to consider this aspect of the case.
30. The Forum below has awarded compensation of Rs.3.lakhs. The 1st opposite party/doctor and the 2nd opposite party/hospital are made jointly and severally liable to pay the aforesaid compensation of Rs.3.lakhs. We have already held that the 2nd opposite party/Ashwini hospital cannot be made vicariously liable for the negligence of the 1st opposite party/Dr.P.P.Kunhiraman. It is also come out in evidence that no consideration was paid by the complainant for the service rendered by the 2nd opposite party. There was no consumer-service provider relationship between the complainant and the 2nd opposite party/hospital. So, the 1st opposite party alone can be made liable to pay compensation to the complainant by taking into consideration that there was negligence on the part of the complainant and the 1st opposite party.
31. The materials on record would show that there was contributory negligence on the part of the complainant and her legal heirs. That aspect is also to be taken into consideration. This commission is of the view that the compensation of Rs.3.lakhs awarded by the Forum below is exorbitant. It is on the higher side. We are of the view that a compensation of Rs.50,000/- is sufficient to meet the ends of justice. The 1st opposite party is made liable to pay the aforesaid compensation due to the complainant. Since the complainant is no more, her legal heirs namely the additional respondents 4 to 6 are entitled for the said compensation of Rs.50,000/-.
32. The 1st opposite party/Dr.P.P.Kunhiraman was having a professional indemnity policy in his name, at the relevant time. The 3rd opposite party/New India Assurance Company Ltd., Kannur was the insurer of the said policy. Ext.B4 is the aforesaid professional indemnity policy issued to the 1st opposite party by the insurer, the 3rd opposite party/New India Assurance Company Ltd., Kannur. A perusal of B4 professional indemnity policy would make it clear that the 3rd opposite party/insurer is bound to indemnify the 1st opposite party for the professional conduct and service of the 1st opposite party in any place in India. The mere fact that the address of the insured is given as Darsana Eye Clinic, Talap, Kannur-2 cannot be taken as a ground to hold that the 1st opposite party is only covered by the policy for the professional activities which the insured conducted at his eye clinic alone. On the other hand, in B4 insurance policy schedule, the territorial limits are shown as anywhere in India. The aforesaid policy was for the period from 4/4/1995 to 3/4/1996 and the indemnity limit was for Rs.4.lakhs. Thus, it can be seen that the professional activities of the 1st opposite party are covered by B4 indemnity policy issued by the 3rd opposite party. It is to be noted that B4 policy is ‘styled as’ professional indemnity policy for doctors and medical practitioners. Thus, the 3rd opposite party/insurance company cannot be justified in repudiating the insurance claim to get the 1st opposite party, indemnified for the professional risk as a doctor. Hence we hold that the 3rd opposite party is liable to pay the aforesaid compensation of Rs.50,000/- due to additional respondents 4 to 6 being the legal heirs of the complainant, Parvathikutty.K. The aforesaid compensation of Rs.50,000/- will carry interest at the rate of 9% per annum from the date of the impugned order (20/9/2004) passed by CDRF, Kannur in OP.488/96. The cost of Rs.2000/- awarded by the Forum below can be treated as fair and reasonable. Hence the same is upheld. These points are answered accordingly.
In the result, the above appeals are disposed of. The impugned order dated:20th September 2004 passed by CDRF, Kannur in OP.488/96 is modified and thereby the 2nd opposite party (appellant in A.1003/04) is exonerated from the liability to pay compensation to the complainant and her legal heirs. The 1st opposite party (appellant in A.1020/04) is directed to pay compensation of Rs.50,000/- to the additional respondents 4 to 6 in the appeal being the legal heirs of the deceased complainant Parvathikutty.K. The aforesaid compensation of Rs.50,000/- will carry interest at the rate of 9% per annum from the date of the impugned order (20/9/2004) till realization. The cost of Rs.2000/- ordered by the Forum below is upheld and the 1st opposite party is made liable to pay the said cost. The 3rd opposite party (appellant in A.1015/04) being the insurer of the professional indemnity policy is directed to pay the said compensation with interest and cost awarded against the 1st opposite party/Dr.P.P.Kunhiraman, the insured. As far as the present appeals are concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
