BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 04^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. Initially this  complaint  came to be filed against Opposite party no.1 to 4  for the following reliefs.

 a) Direct the Opposite  party 1 to 4 to pay complainant a sum of Rs.26,185/- the cost of the negligent medical treatment at the 1^st OP hospital along with the interest at 18% from 05.10.2015 till date of payment.

b) Direct the OP 1 to 4 to pay to the complainant a sum of Rs.44,495/- , the cost of medical treatment at the Sevakshethra hospital, along with interest at 18% from 05.10.2015 till date of payment.

c) Direct the OP 1 to 4 to pay to the complainant a sum of Rs.2,00,000/-as compensation for the mental agony and pain and suffering etc. on account of deficiency of service along with interest at18% from05.10.2015 till payment.

d) Direct the OP 1to 4 to pay to the complainant a sum of Rs.30,000/- as compensation for follow up treatment, nourishing charges, medications including catheter, travelling and nourishment along with interest at 18% from 05.10.2015 till date of payment

e) Grant such other consequential relief as this Hon’ble Forum deems fit including cost of this proceedings.

Subsequently, OP-5 has been impleaded without any amendment of pleadings in the complaint.

2.   The brief facts of the complaint  are as under :

On 09.04.2015 the complainant  was admitted in the -1 hospital for Catheterization procedure. The 4^th OP has performed this procedure with gross negligence which lead complainant to sustain certain injury. The complainant was discharged from the hospital on 14.04.2015, he experienced enormous pain and discomfort.

The complainant was admitted to Sevakshetra hospital on 20.06.2015 for a period of 38 days and spent Rs.44,495/-. The complainant also spent Rs.26,195/- in the hospital of OP-1. Due to the negligence act of the            OP-1 to 4 the complainant has suffered mentaly and physically. Hence this complaint.

3. After receipt of notice, the OP-1 to 4  appear and file  version. They admit that the complainant was admitted in Op-1 hospital. OP-2  to 4 are employees of 1^st OP as they were being only consultants and they were working consultants in OP-1 hospital. They provided proper treatment to the complainant, his weight was reduced 4 to 5 kgs, it  indicates  sufficient relief  for symptoms. As the complainant discharged against medical advise and the signature of the complainant was obtained.

4. The complainant failed to approach OP-1 hospital for further review, but he called upon OPs 15 to 20 times in abusive manner  and demanded for money. There is no medical negligence on the part of OPs. They request to dismiss the complaint.

5. OP-5 files his version.  OP-5 contends that it is  neither  proper and necessary party to the complaint. The complainant claims Rs.3,00,590/- with interest without any basis. OP-5 issued professional indemnity insurance in the name of M/s Susrutha Medical AID and Research Hospital Ltd., for the period from 30.11.2014 to 29.10.2015 on payment of premium of Rs.1,87,975/-. As per the policy OP-1, the policy was insured for any one accident for Rs.1,00,00,000/- for any year at Rs.4,00,00,000/- and OP-5 is not liable to pay more than Rs.1,00,000/-. OP-5 requests to dismiss the complaint.

6. The complainant filed his affidavit evidence and after his death his wife has filed affidavit in support of their contention and relies on the documents. The Managing Director of OP-1 and OP-2 have filed their affidavit evidence. The memo was filed on behalf of OP-3 & 4 adopting the evidence of OP-1 & 2 and requests to dismiss the complaint.

7. Perused records including the written arguments.

8.  The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

9. Our answer to the above points are as under:

       Point No.1:- Affirmative in part.

      Point No.2:- Affirmative in part.   

      Point No.3:-As per the final order.

REASONS

10.  Point Nos.1 and 2:  At the 1^st instance we would like to refer documents produced by both sides. It is admitted and proved that this complaint was admitted in OP-1 hospital on 09.06.2015 with history of Type-2DM about 25 years, parkinson’s since 2years,IHP-S/P CABG 10 years back he was discharged on 14.06.2016. The complainant made payment of Rs.26,185/- towards medical expenses in the OP-1 hospital. The discharge records indicates that certain medicines were given including procedure of Metolazone, doses of Eplerenone with addition of Furosemide.  The managing director    OP-1 & 2 has categorically stated that they have taken all suitable precautions and provided medical aid. According to them the weight of the patient was reduced  4 to 5 Kgs, which was significant relief of symptoms. Later on the complainant got admitted in Sevakshetra hospital on 20.06.20215 to 21.06.2016 posted for circumcision  case of meatal shenosis and paraphimosis and he has  spent Rs.44,925/-. It further indicates that the stay  of the complainant in Sevaskhetra hospital was only for one day.

11. The OP-1 to 4 have specifically stated in the version that even the patient was admitted  09.06.2015 but patient  was discharged against the medical advise. In their  affidavit evidence further indicates  one boy was deputed to attend  and helping the clients, but ward boy is not examined by OP-1 to 4 to  prove this fact. Non-examination of ward boy is  against OP-1 to 4. OP-1 to 4  have specifically stated in para-8 of their version that patient was discharged against medical advise  for which patient signature was also obtained.

12. We carefully perused the documents produced by OP-1 to 4. The admission record indicates that the complainant was admitted in the hospital of OP-1 on 09.06.2015 and discharged on 14.06.2015, but there is no reference that the patient was discharged against medical advise.  The signed form discloses the signature of Preethi Shanbu Kumar, who is wife of the complainant.  It only indicates that the patient was discharged after obtaining signature, but it no way  indicates that patient got discharged himself against medical advise. Therefore, the decision of Hon’ble Supreme Court reported in 2010(3)SCC 480  Kusum Sharma & others  does not support  the case of the complainant. It is admitted fact that Shambu Kumar died on 23.07.2019. The complainant also relies on  decision of Hon’ble Supreme Court reported in 2009(6) SCC(1). The OP-2 to 4 have not produced any documents to show that OP-2 to4  were only consultants in the hospital of OP-1. OP-3 and 4 have  not produced any documents to show that they are students, they had visited OP hospital during training period, but these facts not supported by any documents.

13. Even the complainant has spent Rs.26,185/- in the hospital of OP-1, but Rs.44,495/- spent by the complainant was for different treatment, for which OP-1 to 4 are not liable. The complainant has not produced any document to show that he has spent amount to the tune of Rs.1,00,000/- towards pain and suffering, Rs.10,000/-  for nursing , Rs.10,000/- for followup and medication, Rs.10,000/-  for travelling and nourishing.

14. At the instance of OP-1 to 4, OP-5 has been impleaded. OP-5 clearly admitted about insurance policy taken by OP-1 and its liability is only  to the maximum extent of Rs.1,00,000/-. The Lr of complainant is entitled to refund of Rs.26,195/- as  OP-1 to 4 are  medically negligent while providing treat to the original complainant. The claim of the complainant  Rs.1,00,000/- each for mental agony, pain and suffering is exorbitant. There is no acceptable material to award this amount. Under such circumstances, it is proper to award Rs.15,000/- as compensation for mental agony, pain and sufferings. The complainant  and his wife have availed service of advocate. The cost of litigation is quantifies to Rs.5,000/-. Even the OP-1 to 5 are liable to pay this amount. OP-5 is to pay the amount awarded to the complainant/wife of complainant.

15.  Point No.3: In view of discussions made on point no.1 & 2 complaint  requires to be allowed in part. OP-1 to 4  are liable to pay Rs.26,195/- + Rs.15,000/- compensation and Rs.5,000/- as cost of litigation. OP-5 being the insurance company is liable to pay this amount to the wife of complainant and other claims of the complainant are rejected. we proceed to pass the following 

O R D E R

1. The complaint is allowed in part against OP-1 to 5.
2. The OP-5 shall pay Rs.26,195/-, compensation of Rs.15,000/- and Rs.5,000/- towards  cost of  litigation to the widow of complainant on behalf  of Op-1 to 4.
3. OP-5 shall comply this order within 45 days from this date, failing which the OP-5 shall pay interest at 10% p.a. on Rs.26,195/- after expiry of 45 days till realization.
4. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 4^th  day of July, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :