Kerala

StateCommission

A/13/604

PUSHPAGIRI MEDICAL COLLEGE HOSPITAL - Complainant(s)

Versus

SREEJAYA.P.S - Opp.Party(s)

V.K.MOHANKUMAR

27 Apr 2016

ORDER

VKERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NOS. 604/2013 & 61/2014

COMMON JUDGMENT DATED:27/04/2016

(Appeal filed against the order in CC.No.09/2009 on the file of CDRF, Pathanamthitta, order dated : 29.08.2013)

 

PRESENT

 

SHRI.K.CHANDRADAS NADAR  : JUDICIAL MEMBER

 

SHRI.V.V. JOSE                                       : MEMBER

 

APPEAL NO.604/2013

 

APPELLANT

 

          Pushpagiri Medical College Hospital,
          Thiruvalla. R/by its C.E.O-

          Father Dr. Shaji Vazhayil, Pushpagiri Medical

          College Hospital, Thiruvalla.

 

          (By Adv: Sri. V.K. Mohan Kumar)

 

                                                          Vs.

 

RESPONDENTS

 

1. Sreejaya P.S., Kuriyelethu House,

          Melukara (PO), Kozhencherry.

 

2. Sreejesh. K.J., S/o. Jayadevan,

          Kuriyilethu House,

          Melukkara (PO), Kozhencherry

 

3. Sreelekshmi, D/o. Jayadevan,

          Kuriyilethu House,

          Melukkar (PO), Kozhencherty.

 

 

         

4. Dr. Dominic Anto,

          Neuro Surgeon, Pushpagiri Medical

 College Hospital, Thiruvalla.

 

5. United India Insurance Co. Ltd.,

Pathanamthitta.

 

6. Dr. Raju Paul, Neuro Surgeon,

Pushpagiri Medical College Hospital,

Thiruvalla.

 

(By Adv: Sri. Sreekumaran Nair for R1 – R3

  Adv: Sri. Rakesh Kumar for R4 & R6 &

  Adv: Sri. Jagadish Kumar for R5)

 

APPEAL NO.61/2014

 

APPELLANTS

 

 

1. Dr. Dominic Anto,

          Neuro Surgeon, Pushpagiri Medical

 College Hospital, Thiruvalla

 

2. Dr. Raju Paul, Neuro Surgeon,

Pushpagiri Medical College Hospital,

Thiruvalla

 

(By Adv: Sri. P.K. Mathew & Rakesh Mumar & othrs)

 

                                                                   Vs.

 

 

RESPONDENTS

 

1. Sreejaya P.S., Kuriyelethu House,

          Melukara (PO), Kozhencherry.

 

2. Sreejesh. K.J., S/o. Jayadevan,

          Kuriyilethu House,

          Melukkara (PO), Kozhencherry

 

 

3. Sreelekshmi, D/o. Jayadevan,

          Kuriyilethu House,

          Melukkara (PO), Kozhencherry.

 

4. Pushpagiri Medical College Hospital,
   Thiruvalla. R/by its Managing Director,

 Pushpagiri Medical College Hospital,

Thiruvalla.

 

5. United India Insurance Co. Ltd.,

Pathanamthitta. R/by its Branch Manager.

 

          (By Adv: Sri. Sreekumaran Nair for R1 – R3

            Adv: Sri. Jagadish Kumar for R5)

         

COMMON JUDGMENT

         

SHRI.K. CHANDRADAS  NADAR          : JUDICIAL MEMBER

          Opposite party No.1 in CC No.9/2009 in the CDRF, Pathanamthitta has preferred appeal no.604/2013 and opposite party no.2 and additional opposite party no.4 have jointly preferred Appeal No.61/2014.  Respondents 1 to 3 were the complainants.   They approached the consumer forum alleging negligence in treating deceased Jayadevan who was admitted in the 1^st opposite party hospital after head injury.  The appellants resisted the claim and contended that had given medically accepted treatment and there was no negligence on their part.  The consumer forum once recorded the evidence of the parties and allowed the complaint.   The 1^st opposite party Pushpagiri Medical College Hospital, Thiruvalla challenged the decision of the consumer forum by preferring appeal no.15/2011.   A single member of this Commission as per judgment dated 1.2.2013 confirmed the factual findings of the consumer forum, mainly in the background that whereas the post-mortem report revealed that a surgical injury to the liver of deceased Jayadevan was the cause of death, opposite parties failed to prove that they were not responsible for that injury.  But while confirming that the opposite parties were liable it was held that the order of the consumer forum could not be understood in a way that it did not fix any liability against the doctors concerned.  The order of the forum fixing liability against the 1^st opposite party hospital alone is not legally sustainable. Therefore the appeal was allowed in part setting aside the result portion of the order of the consumer forum. The case was remanded for fresh disposal after considering the matter in accordance with strict principles of law observing that the principle of law involved is relating to vicarious liability (master and servant relationship).

          2.      After remand the consumer forum heard the parties and passed the order challenged in these appeals fixing liability as follows:

1. “The 1^st opposite party is directed to return the treatment expenses of Rs.1,20,000/- (Rupees one lakh twenty thousand only) along with compensation of Rs.3,00,000/- (Rupees three lakhs only) and cost of Rs.5,000/- (Rupees five thousand only) to the complainants within 30 days from the date of receipt of this order along with interest at the rate of 10% from 14.12.2012 to this day, failing which the complainants are allowed to realize the whole amount from the 1^st opposite party with 12% interest from today till the realization of the whole amount.
2. The 1^st opposite party is at liberty to realize any amount from 2^nd and additional 4^th opposite party if there is any agreement between them as mentioned above”

          3.      In these appeals the challenge is mainly regarding the way in which liability is fixed by the consumer forum.   So everything is back to square one.  It is not for me to comment whether the matter ought to have been remanded at all for this commission could have decided the exact liability of the opposite parties.  It also requires mention that none of the parties challenged the order of this Commission dated1.1.2013 which confirmed the factual findings of the consumer forum.  So in these appeals the factual findings and quantum of compensation awarded cannot be reconsidered.   The only question is whether the consumer forum was justified in the passing, the impugned order and if not what is the extent of liability of respective opposite parties.  It may be mentioned that United India Insurance Co. Ltd. is impleaded as additional 3^rd opposite party but at no point of time they were made liable apparently because there was no valid insurance with them.   The principle of vicarious liability is clear. A servant or employee is liable for his negligence.   His employer is vicariously liable for the negligent acts or omissions of the employee committed in the course of his employment. The extent of liability is joint and several leaving the complainant as the master of the situation.  It is at the option of the complainant to realise the compensation awarded from all or any of the opposite parties and a consumer court can only execute the order as the complainant wishes.   If as a matter of fact the complainant realises the compensation from the master namely the hospital, it is open to them to seek appropriate remedies to realise contribution of reimbursement of the amount paid from their employees or servants.  It is unnecessary for a consumer forum or any court to direct or grant liberty to the employer to realise contribution or reimbursement as the case may be.

          In short, the consumer forum unnecessarily passed direction No.(ii) “in the operative portion of the order.  Hence while confirming the direction to return the treatment of expenses of Rs.1,20,000/- and pay compensation of Rs.3,00,000/- and cost of Rs.5,000/- with interest, it is made clear that the liability of opposite parties 1, 2 and additional 4 shall be joint and several.  The order of the consumer forum shall stand modified accordingly.  Both the appeals are disposed of as above.

 

K. CHANDRADAS NADAR  : JUDICIAL MEMBER

 

V.V. JOSE          : MEMBER

 

 

 

 

KERALA STATE CONSUMER

 DISPUTES REDRESSAL COMMISSION

SISUVIHARLANE VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NOS. 604/2013 & 61/2014

COMMON JUDGMENT DATED:27/04/2016