02/08/16
HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT
This Appeal is directed against the judgment and order passed by Learned District Forum, Burdwan in CC 41 of 2004 allowing the complaint against OP No.2 and directing OP No.2 to pay the sum of Rs.1,80,000/- due to negligence and deficiency in service and litigation cost of Rs.2,000/- to the Complainant within a period of 45 days failing which the amount shall carry interest @ 8% p.a. The case was dismissed against OP Nos.1 and 3. OP No.2, the Nursing Home, has preferred this Appeal.
The case of the Complainant/Respondent, in short, is that she was under the treatment of Dr. Subal Chandra Pal, the OP No.1 and on 19/06/03 at 4.08 p.m. she gave birth to a female baby by caesarean section done by OP No.1. There was no physical complication of the said baby as per Dr. Sushil Roy Chaudhury, the OP No.3, Child Specialist of Burdwan who examined the baby on call by OP No.1. In the Nursing Home there was no trained nurse and no R.M.O. The untrained aya allowed the baby to suck breast milk in the morning on 21/06/03. As a result, the baby became sick. The baby became restless and seriously ill from 3.10 p.m. on 21/06/03, but there was none to look after the baby. The baby stayed there without medical care till 8.15 p.m. when Dr. Sushil Roy Chaudhury, the OP No.3 examined the baby on call. After examination the OP No.3 transferred the baby to Burdwan Nursing Home on the self same day. But on 22/06/03 at 2.05 a.m. the baby expired. A criminal complaint was lodged and the post mortem examination was done. The baby expired due to the negligence of the OPs. The OP No.1 transferred the baby to OP No.2 which was ill-equipped Nursing Home. Under the circumstances, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant/Nursing Home has submitted that on 21/06/03 at 3.10 p.m. the respiratory trouble of the baby started while feeding manually as alleged. It is submitted that a criminal case has been lodged. It is contended that Dr. Sushil Roy Chaudhury, OP No.3 was looking after the baby from the very beginning and on the advice of OP No.3 the baby was shifted to Burdwan Nursing Home. It is submitted that the OP No.3 was subsequently made a party.
The Learned Counsel for the Respondent/Complainant has submitted that the baby was not treated in Neonatal Unit. It is submitted that the asphyxia of the baby had already started and there is nothing to show what treatment was done towards the respiratory problem of the baby. It is submitted that the baby ought to have been shifted to Neonatal Unit much earlier and because of the lack of due care the baby expired. It is submitted that in spite of the availability of three doctors the laryngoscope and bronchoscope were not done. It is submitted that there was no explanation as to what step was taken for the treatment of the respiratory problem of the baby from 3.10 p.m. to 5.10 p.m. The Learned Counsel has referred to the decision reported in 1996 (2) CPJ 1 (SC) [Poonam Verma vs. Ashwin Patel & Ors.].
The Learned Counsel for the Respondent No.3 has submitted that initially there was no allegation against OP No.3 of the complaint and he was not even impleaded in the complaint case. It is submitted that subsequently the amendment petition was allowed and OP No.3 was impleaded. It is submitted that the OP No.3 was called at the Nursing Home when the condition of the child was critical and he arrived there at 8.15 p.m. It is submitted that after birth the child was O.K. and the baby was never under the care of OP No.3. It is contended that the OP No.3 advised to transfer the baby to a Child Care Hospital and on 22nd morning the baby expired due to respiratory problem.
We have heard the submission made by both sides and perused the papers on record. The Learned District Forum dismissed the complaint case against the OP Nos.1 and 3 and allowed the same against the OP No.2. In the complaint it has been alleged that on 21/06/03 the baby became restless and seriously ill from 3.10 p.m. and no medical care was taken at the Nursing Home. As regards the condition of the Nursing Home it appears from the enquiry report submitted by Deputy C.M.O.H (I), Burdwan dated 01/08/03 that there was no negligence and lack of sincerity so far as the treatment of the baby was concerned. It has been mentioned that the baby was born with congenital heart disease and developed “aspiration pneumonia” due to entry of milk in the respiratory track accidentally which was not common if a new born baby is fed naturally or artificially using faulty technique. It has been mentioned in the report that so far the issuing licence of Nursing Home is concerned the Licensing Authority issued licence to run the Nursing Home only and not for running Baby Nursery or Baby Resuscitative Unit or Intensive Care Unit for Baby. In the enquiry report it was observed as follows:
“……. Nursing Home Authority of Burdwan Nursing Home are certainly at fault because they are running their Nursing Home without a single trained nurse, R.M.O. as is evident from their failure to show any appointment letter & letter of acceptance to and from the concerned staff………”.
From the materials on record it is clear that the Nursing Home was not equipped with the facilities to treat the baby at critical stage. The Learned District Forum having considered all the aspects of the case rightly passed the impugned judgment directing the OP No.2 Appellant to pay Rs.1,80,000/- due to negligence and deficiency in service towards the baby and litigation cost of Rs.2,000/- to the Complainant. We are of the considered view that there is no ground to interfere with the findings of the Learned District Forum.
The Appeal is dismissed with cost of Rs.5,000/- to be paid by the Appellant to the Respondent/Complainant. The impugned judgment is affirmed.
