BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 101/10.
THIS THE 29th DAY OF AUGUST 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
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COMPLAINANT :- 1. Vijay Kumar S/o. Muttu Swamy @ Mutthanna, Age: 29 years, Occ: Tea Stall Vendor.
2. Smt. Vijaya Nirmala W/o. Vijay Kumar,
Aged about 23 years, Occ: Housewife, both
are residents of H.No. 9-15-96, Maddipet,
Raichur
//VERSUS//
OPPOSITE PARTIES :- 1. Sri. Sharana Basaveshwara Hospital, Chirayu Complex (Old Canara Bank) Raichur 584101.
2. Dr. J. Basanna Gowda Patil, Chirayu Complex (Old Canara Bank) Raichur- 584101.
CLAIM : For to direct the opposites to pay compensation amount of Rs. 10,00,000/- (Rs. Ten Lakhs) with interest and cost.
Date of institution :- 20-11-10.
Notice served :- 27-12-10.
Date of disposal :- 29-08-11.
Complainant represented by Sri. N. Padmavardhan, Advocate.
Opposite Nos. 1 & 2 represented by Sri. Sateesh.V. Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Nos. 1 & 2 against the opposite Nos-1 & 2 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay compensation amount of Rs. 10,00,000/- (Rs. Ten Lakhs) with interest and cost.
2. The brief facts of the complainant’s case are that, their son Akhil aged about (11) months was developed respiratory problems at about 12:00 noon on 14-05-2009, as such, they have taken their baby to the hospital of opposite Nos. 1 & 2 for treatment at about 12:30 PM. Opposite No-2 admitted their baby in his hospital noted at opposite No-1. Complainants paid Rs. 1000/- towards medical charges to opposite No-2, at about 5:00 PM on that day they noticed severe complications in the baby and it became aggravated because of non action and treatment by opposite No-2 at proper time. At the fag end of their request when their baby was suffering from acute breathlessness opposite No-2 came and instructed them that he has no further equipments and facility to control the decease and asked them to take the baby to the higher hospital therefore they requested to provide ambulance to shift the baby but at 7:00 PM with all their efforts ambulance obtained from other hospitals and took the baby in the ambulance to take to Government Hospital, Kurnool for better treatment. But the baby died in the ambulance after crossing 2 KM from Raichur. The baby died due to in action of opposite to give proper treatment at proper time, not equipped proper equipments to meet out the emergent situation, his hospital was not equipped with ventilator facility etc., and thereafter, he not provided copies of the case sheets even on payment and thereby opposite Nos. 1 & 2 found guilty under deficiency in their services, accordingly this complaint is filed by them for the reliefs as noted in it.
3. After appearance of opposite Nos. 1 & 2. Opposite No-2 field written version and opposite No-1 adopted the same written version. The main contention of the opposites are that, the baby brought on 14-05-2009 at about 12:30 PM with complications of respiration, he was admitted by taking detail history of the baby and proper treatment was given with injections, however more complications developed in the health of baby, the same was explained to the attendant i.e, to the complainant No-1 but they delayed in shifting the baby from hospital on the ground that, they have no proper fund to take the baby to higher hospitals. Repeated instructions given to complainant to shift the baby, but complainants themselves shown their negligence in shifting the baby and ultimately at 7:15 PM they got discharged their baby. Both opposites have denied other allegations made against them with regard to treatment and negligence etc., and prayed for to dismiss the complaint with heavy cost.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant Nos. 1 & 2 proves that, their (11) months male child Akhil was admitted to the hospital of opposite No-2 for treatment for the complications of breathlessness on 14-05-2009 at 12:00 PM by depositing fee amount of Rs. 1000/-. Opposite No-2 not examined the baby properly and not provided proper treatment and consequences of it child became serious, on enquiry doctor told to them that, he has no ventilator facility to keep the child for to provide treatment and directed them to shift the baby from his hospital immediately without providing any ambulance and he further delayed in arranging ambulance the condition of the baby became precarious and therefore they took the baby in ambulance to go to Kurnool, but the said baby died after passing 2 KM from Raichur. The death was due to negligence of opposite No-2 and thereby opposite Nos. 1 & 2 found guilty under deficiency in their services.?
2. Whether complainants are entitled for the reliefs as prayed in this complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2 :-
6. To prove the facts involved in these two points, affidavit-evidence of complainant No-1 was filed, he was noted as PW-1, documents Ex.P-1 to Ex.P-5 are marked. Written arguments filed. On the other hand, affidavit-evidence of opposite No-2 doctor was filed, he was noted as RW-1, documents Ex.R-1 to Ex.R-3 are marked. Written arguments filed.
7. Now, it is settled law that, in a case of medical negligence against the doctor, the burden of proving all kinds of allegations of negligence are on the complainants. As such we have not referred the ruling relied by the opposite in this regard, in view of the principles of the settled law, it is the duty of the complainants to prove the alleged negligence against opposite No-2 doctor and the result of it, their baby died.
8. Before discussions the case of complainants on merits in this regard, we have referred some of the following rulings of the Hon’ble Supreme Court and Hon’ble National Commission for our guidelines: 1) 2005 CCC 370 NS
The Hon’ble Supreme Court observed in this case as ‘Medical Service is a service to humanity, reward or financial gain is subordinate consideration’.
9. The Hon’ble National Commission in recent case 2011 INDLAW NCDRC 127 observed in:
Mohammed Abrar V/s. Dr. Ashok Desai, Greater Kailasha Nursing Home.
Held as - the medical practitioner cannot be treated as magician or demi gods, they have fallible human beings, the liability to pay compensation may arise only when the complainant proves that causation was result of negligence committed by the medical practitioner’.
10. Before going through the case of complainant we have also referred a case of the Hon’ble Supreme Court reported in 2010 CTJ 868 V.Kishan Rao V/s. Nikhil Super Specialty Hospital.
11. In the light of the above authorities, we have gone through the case of complainant as well as opposites and we noticed some of the following undisputed facts between the parties namely:
1. It is undisputed fact that, the son of complainant Nos. 1 & 2 by name Akhil aged about (11) months was admitted in the hospital of opposite Nos. 1 & 2 on 14-05-2009 at about 12:30 PM on the complaint of his breathlessness and high fever.
2. It is undisputed fact that, opposite No-2 advised the parents to shift the baby to higher hospital on that day itself at 7:00 AM as baby becoming drawsy and serious.
3. It is further undisputed fact that, baby discharged from the hospital on 14-05-2009 at 7:00 PM and later on within half an hour baby died after crossing 2 KM from Raichur while shifting him to higher hospital at Kurnool (AP).
12. The learned advocate for complainant submitted detail written arguments in reference to the rulings:
1) Revision Petition No. 2069/2010 of National Commission.
2) AIR 2004 SC 5088.
3) 2008 STPL (CL) 188 NC.
4. 2008 STPL (CL) 1130 NC.
5. 2007 STPL (CL) 882 NC.
6. Chapter XXXI of police manual search & property.
7. Sec. 165 of Cr.p.c.
13. In the similar way, the learned advocate for opposite also filed written arguments by referring the ruling reported in:
1) C.P. Srikumar (Dr) M.S. Artho V/s. Ramanujam.
2) 2010 SAR (Civil) 550 V.Kishan Rao V/s. Nikhil Super Specialty Hospital and also referred some of the police papers filed in Crime No. 87/2009 in which ‘B’ final report was filed.
14. The specific allegations against opposite doctor are:
(1) The hospital of the opposite No-2 doctor was not equipped ventilator facilities etc., as it is must in the hospital of pediatrician.
(2) Ambulance not provided or arranged in shifting the baby from his hospital in time.
(3) Opposite doctor not provided copies of the case sheets and Lab Tests Report even on payment vide pay order dt. 31-08-10.
(4) In action of opposite doctor to provide proper treatment at the proper time.
15. All these allegations are denied by the opposite doctor. Keeping in view of these facts and circumstances of this case, we have gone through the affidavit-evidences and their respective documents.
Ex.R-3 produced by the opposite doctor which is a case sheet copy, doctors and progress note of Akhil.
16. It is a specific case of the complainant that, case sheet not furnished even after payment vide pay order Ex.P-5 and postal acknowledgment for service of it to Ex.P-4.
17. It is very much clear from Ex.P-5 that, complainant paid an amount of Rs. 200/- vide pay order dt. 02-08-10. Ex.R-3 is copy of the case sheet not discloses on which date it was served on the complainant No-1. Ex.R-3 case sheet copy shows that, the case sheet of the Akhil was furnished on the complainant No-1 by taking his signature, this fact was denied by complainant No-1. In the light of these circumstances, we have gone through Ex.R-3 in detail, as per Ex.R-3 the patient Akhil was admitted in the hospital at 2:15 PM and it discloses that, the investigation took place from 2:45 PM onwards. Signature appearing in Ex.R-3 said to be a signature of complainant No-1 which is in English in right bottom side of it, it is written as father.
18. In Ex.R-1 complainant filed by complainant No-1 appeared the police shows that, he signed in Kannada by writing his name in Ex.P-2 the complainant has signed it in Kannada by writing his name. In vakalat he signed by writing his name, Affidavit filed along with IAs dt. 31-08-10 and affidavit filed with IA-1 dt. 17-12-10 discloses the signatures of complainant No-1 as those were written in Kannada letters.
19. On perusal of written version filed by opposite doctor, it is very much clear that, he admitted that patient, Akhil was admitted by the parents at 12:30 PM on that day, taking into consideration of this time, we have seen Ex.R-3 that the admission of patient Akhil was a 2:15 PM not as 12:30 PM the signatures on the above said documents very much clearly shows that, the complainant No-1 might be knowing only to write his signature as his in Kannada. Because Kannada letters written by him clearly shows that, he is not well versant with writing of Kannada words. So, such a man cannot sign his signature in English as noted in Ex.R-3. Ex.R-3 discloses details of medicines administered to the baby along with various tests, the baby became serious and unconscious state of mind within few hours as admitted by the doctor himself. If really that much of serious then why he not informed it at the time of admission only Ex.R-3 not discloses such circumstances. Further it appears to us that, he is not having such facilities to meet out such emergent cases. He is a pediatrician running clinic with specialized qualification, he should have a minimum facility of ventilator or other facilities required to be provided in such emergent situations. From the entire evidence and documents filed by the opposites clearly goes to show that, remained silent in such emergent situations without advising the parents, properly because of the fact that, he is no such facility to meet out the emergent situations and further it is very much clear that, Ex.R-3 was prepared by him after thought to over come his negligence. The defence of opposite is that, parents were not able to arrange fund to shift the boy from the hospital, as such there was a delay. This ground cannot be acceptable ground to over come his negligence. It is clear cut case that, opposite doctor shows in action in arranging the patient, opposite hospital not equipped with proper equipments to meet out certain unforeseen challenges in the health Akhil. Simply admitting the patient in the hospital without any facility and after sometime, telling the parents to take him to higher hospital, is itself in action on the part of opposite No-2. He intentionally not provided copies of the case sheet to the complainants even after payment Ex.R-3 was prepared after thought for the purposes of this case. In view of the grounds stated above and in view of the principles rulings referred above by the parties, we are of the clear view that, there is negligence of opposite No-2 in treating advising the parents of Akhil and intentionally not issued copies of the case sheets to him and delayed in providing ambulance are contributing factors for the death of Akhil within half an hour from discharge. The evidence and documents of opposites not reliable and not sufficient to over look our above observations, hence we came to a conclusion that, the complainants have discharged their burden in proving the negligence of opposite No-2, accordingly we answered Point No-1 in Affirmative.
POINT NO.2:-
20. As regards to the quantum of compensation required to be awarded in this case, we are of the view that, any quantum of compensation awarded by us is not a substitute for the loss of love and affection of complainant Nos. 1 & 2. However, the complainants have prayed for to grant amount of Rs. 10,00,000/-. There are no grounds out coming to arrive for such figure to grant as a compensation, however, we have taken note of all the circumstances and considered the fact that, deceased Akhil is not an earning member and the principles of Sushma Thomas Case and awarded a global compensation amount of Rs. 4,00,000/-. The complainant also entitled to recover a lumpsum amount of Rs. 3,000/- towards deficiency in service and also they are entitled to recover a lumpsum amount of Rs. 3,000/- towards cost of litigation, as such, the complainants are entitled for Rs. 4,06,000/-. The complainants are also entitled to recover interest at the rate of 9% p.a. on the said sum of Rs. 4,06,000/- from the date of this complaint till realization of the full amount accordingly we answered Point Nos. 2.
POINT NO.3:-
21. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainants Nos. 1 & 2 are partly allowed with cost.
The complainant Nos. 1 & 2 jointly are entitled to get a total sum of Rs. 4,06,000/- from opposite Nos. 1 & 2 jointly and severally.
The complainant Nos. 1 & 2 jointly are also entitled to recover interest at the rate of 9% p.a. on Rs. 4,06,000/- from the date of this complaint till realization of the full amount.
Opposites are hereby granted one month time to make the said payment from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 29-08-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
