F.A. No. 141   of 2007 with

F.A. No. 183   of 2007

          Heard learned counsel for both parties.  Both the appeals arise out of impugned order passed on 9.1.2007 in C.D. Case No.35/05. Therefore, this common order is hereby passed in both the appeals.

 2.     These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

3.      The factual matrix leading to the case of the complainant is that on 06.04.2003 complainant no.1 had gone to the Nurshing Home of O.P.no.1 along with his wife Sarala Mishra for causing abortion which was only six week’s old  pregnancy as the wife and husband were not  in need of another child. On 06.04.2003 in the morning at about 9.15a.m, they reached the Nursing Home of O.Ps and as per instruction of Dr.SaritaHota O.P.no.2, complainant deposited Rs.800/- in the cash counter of the Nurshing Home for medicine and other purposes. It is alleged that complainant no.1 was called to the O.T room for treatment and operation and while calm pose I.V injection was administered, Sarala Mishra the wife of complainant no.1 could not tolerate injection, due to cardiac arrest she died on the operation table. It is further alleged that due to negligence and carelessness of the treating doctor the death of wife of complainant no.1 took place. It is alleged that complainant no.1 asked for to O.P.no.2 regarding the cause of death butshe was reluctant to disclose the cause of death and to give details description of the death in writing. Therefore, complainant no.1 remainedadamant and disclosed that he would not remove the dead body from the Nursing Home unless a death certificate was provided to him. Thereafter, O.P.no.2 issued death certificate in her pad on plain paper after which dead body of Sarala Mishra was removed. After observing all formalities complainant no.1 made a complaint to the local police to take criminal action against Dr.SaritaHotaOP No.2, Police registered the case and submitted the charge sheet after investigation U/S 314 IPC. OP No. 2 is facing trial in the court of learned S.D.J.M, Sambalpur and at the same time,  complainant no.1 filed the case before the learned District Forum,alleging  negligence on the part of the O.Ps.

4.      O.Ps 1 and 2 filed the written version  totally refuting the alleged medical negligence and deficiency in service. The O.Ps -  hospital and doctor have not received any fees from  complainant no.1 because  complainant no.1 is a family friend of O.P.no.2. They have also stated that as per medical process, they have given I.V calmpose injection  for abortion on operation table. She was suffering from severe pain in stomach when she came to the NursingHome but unfortunately, Sarla Mishra  expired due to cardiac problem. There is no negligence on the part of O.P.nos. 1 and 2. Therefore, they denied the entire allegations made by  complainant no.1.

5.      O.P.no.3 filed the written version stating that they have only professional and ethical business as per professional Indemnify Policy, he has nothing to do in this case and he has no liability in this case.

6.      After hearing of both parties the learned District Forum has passed the following order:-

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“ The complaint petition is allowed. The O.P.nos.1 and 2 are jointly and severally liable to pay compensation of Rs.5,00,000/-( Rupees Five Lakhs) to the complainants which will meet the ends of justice. The Insurance Company( O.P.no.3)  is directed to indemnify theclaim as per the policy to the O.P.nos.1 and 2 since their Nursing Home has been duly insured. We further direct the O.P.no.1 and 2 to pay the complainants Rs.5,000/-( Rupees Five thousand) towards cost of this litigation within one month from the date of receipt of  this order.”

7.      Learned counsel for the appellants in FA 141 of 2007 submitted that the learned District Forum have passed the impugned order which is error in law by not considering the written version with proper perspectives. According to him the expert opinion is a clean evidence to measure the negligence of doctors. The learned counsel for the O.Ps has submitted that  complainant no.1 has filed the criminal case against  Dr.Hota before the learned Asst.SessionJudge,Sambalpur. However, the learned District Forum without considering all these materials have passed the impugned order directing the O.Ps 1 and 2 to pay the compensation. Therefore, he submitted to set aside the impugned order  by allowing the appeal.

8.      Learned counsel for O.P.no.3, appellant in First Appeal No.183/07 submitted that  Dr.SaritaHota has no liability in this case  and he supports the submission of appellants in F.A.No.141/07. Since  O.P.no.3 has no liability in this case the direction of learned District Forum  for joint liability is unwarranted and illegal and as such it is to be set aside.

9.      Considered the submissions. Perused the DFR and impugned order.

10.    No doubt this is a medical negligence case. Before dealing into appeals with materials on record, it is necessary to illustrate the case laws related to  this case. The case in hand is filed alleging negligence on the part of the OP - doctor. The issue is dwelled with professional negligence. The most leading judgment on this issue is Jacob Mathew vrs. State of Punjab and another (2005) 6 SCC 1. In that case Their Lordships have considered the case of negligence in consumer dispute vis-à-vis under the IPC. The Hon’ble Appex court have made very clear in Jacob Mathew case that  the definition involves three constituents of negligence (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs, for, damage is a necessary ingredient of this tort.A medical practitioner is not liable to be held negligent simply because things went wrong form mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

11.    Besides this,admittedly O.P.no.1 and 2 have been  accusedin the criminal negligence case but Jacab Mathew case  is different in the case of professional negligence. As per the decision of Jacab Mathew the professional medical negligence has asked the doctors team to decide the negligence and as they  have got skill, knowledge of medical negligence. In the instant case, we find from the report of expert committee that they did not find any negligence on the part of  O.P.no.2.  Since the expert committee report is a piece of evidence to assess the liability, evidence on assessment of medical negligence of O.P.no.2 cannot be discredited.

12.    So far the negligence on the part of O.P.no.1 is concerned, we find it has no role in this case .He is a employer of O.P.no.2.The negligence of O.P.no.1 is hardly proved. OP no. 2 in her pleading admitted that  complainantno.1’s wife was dead and it is admitted fact that there is family relation with Dr.Hota (O.P.no.2) and the complainant admitted in the Nursing Home free of charge. So taking into consideration the aforesaid discussion, we are of the view that  the complainants are  not a consumers U/S 2(d)(ii) of C.P.Act.

13.    In view of the aforesaid discussion, this Commission is of the view that the learned District Forum has not taken the proper material and the law into consideration and has arrived at a wrong conclusion. Therefore, this Commission has no hesitation to set aside the impugned order and accordingly, it is set aside.

14.    From the forgoing discussion, there is no other option than to allow the appeals. Hence, both the appeals stands allowed. No cost.

The statutory amount deposited be refunded to the appellants with interest accrued thereon if any.

            DFR be sent back forthwith.

Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.