As per Hon’ble President. Mr. Sanjay Patil.

Complainant filed this complaint U/s 12 of CPA 1986 and it is as follows-

1.                              Complainant is a female patient aged 38 years. She suffered with polio with her right leg since long time and she is handicapped also. She is unable to walk freely without the support of crutches or without the help of any other person. Complainant had suffered from enteric fever and she was admitted in the hospital of OP No.1 on 24/11/2017 and discharged on 27/11/2017.

2.                              Complainant purchased various medicine worth Rs.3,610/- . Complainant also paid pathology charges of Rs.280/- for the test of Malaria Antigen and Vidal test.

3.                              The complainant alleged that, she had fallen down in the hospital of OP No.1 and she suffered with fracture in her right leg. She was referred to OP No. 3. OP No. 2 Examined the complainant and opinion for “Closed Intra-Articular Fracture Right Femur with Polio Affected Right Lower Limb”.  Complainant was admitted in the hospital of OP No.2. Complainant submitted that while going to bathroom at about 5:30 AM on 25/11/2017, she had fallen down while walking on the mattresses and sustained above said injury. OP No.2 recorded all the details and had given discharged summary report as per Doc. no. 4.  Complainant was compelled to incurs expenses for medicine and for stay in the hospital of OP No. 2 and she was to required pay Rs.43,413/- .

4.                              The complainant alleged that, when she was going to bathroom, the hospital staff and doctors did not attend her and therefore she started walking and fallen down and OP No. 1 & 2 committed deficiency in service. OP No. 2 failed to take proper care and committed negligence and therefore, complainant had suffered fracture in her leg.

5.                              The complainant submitted that, National Insurance Company had covered risk of the patient in the hospital of the OP NO. 1 & 2 and therefore, this company is joined as OP No. 3 and is jointly and severally liable to pay compensation to the complainant.

6.                              Complainant had prayed for refund of the entire expenses of Rs.43,023./- alongwith 18% interest from 24/11/2017 and also for the prayed for Rs.15,00,000/- on account of compensation and Rs.25,000/- cost of complaint.

7.                              OP No. 1 & 2 filed written statement and submitted that, the complaint false and vexatious and this Forum/Commission has no territorial jurisdiction. The complainant has not come before this commission with clean hands and has suppressed material information. They submitted that, OP No. 2 is insured by National Insurance Company, direct agent branch, fifth floor, Paul Commercial Complex, Ajani Square, Nagpur under Professional indemnity-medical establishment policy. They submitted that insurer of OP No. 2 is a necessary party to the present complaint.

8.                              OP No. 1 & 2 submitted that, contents in Para No. 1 are not disputed. OP No. 1 had treated complainant and she was clinically diagnosed for Pyrixia of Unknown Origin. OP No. 1 & 2 denied that, Complainant was unable to walk freely and she cannot perform daily routine without assistance of other.  OP No. 1 & 2 denied that complainant is a consumer. They submitted that complainant was accompanied by her uncle and with her consent various tests were carried out and she was admitted as a indoor patient in women general ward. This ward has intake capacity of 6 patient.   OP No. 1 & 2 has not disputed that; complainant was discharged 27/11/2017. OP No. 1 & 2 submitted that, OP No. 1 is charitable hospital and is not aided under any Govt. Scheme.

9.                              OP No. 1 & 2 submitted that complainant has not revealed the true state of affairs. Complainant has advised to have her own attendant during the night. As per the hospital rules of OP No. 1, one attendant is allowed to accompany the indoor patient in general ward on an adjacent bed. They submitted that the qualified nurse and an attendant are posted round the clock in each ward. The complainant was only patient in the ward and she was given bed no. 4 and rest five beds were unoccupied. During the intervening night of 24/11/2017 and 25/11/2017, complainant did not have her own attendant. Qualified nurse and female attendant were on duty at all hours. The staff was also available.  Urine pot was also provided under the bed. The submitted that, the complainant did not bother to call the staff and therefore, she is only responsible for the said fall. After happening of this event, staff on duty rushed to the complainant and helped her in getting on her foot. Residence doctor was also attended to the complainant complained of pain in right knee. Doctor Dole was immediately intimated and he also attended the complainant at 6:00 AM and treated the complainant.  As none of the relative of the complainant was present, intimation was given on Mobile No. 9881820973. Doctor Bhajipale examined the complainant and her right thigh found to be swollen and deformed. Relative of the complainant was intimated regarding the averment of the Govt. Scheme. After examination complainant was diagnosed to have suffered from “Close Intra Articular Fracture Right Femur” and she was advised to undergo operation.

10.                              They submitted that, they have properly discharged their duties and gave proper treatment, complainant failed to produce important document and therefore, she could not avail benefits under the Govt. Scheme Rajeev Gandhi Arogyadayi Yojna . Complainant was liable to pay total sum of Rs.56,518/- but she left the premises without paying balance of Rs.25,860/-.  OP denied other adverse contentions in the complaint and prayed for dismissal of the complaint with exemplary cost.

11.                              Complainant made amendment in the complaint and joined National Insurance Co. as OP No. 3. OP No. 3 has filed Written statement and in short denied that complainant is a consumer of OP No. 3 and complainant has never approached OP No. 3 and never claimed and hence complaint be dismissed. OP No. 3 submitted that, Insurance policy to cover the risk is not supplied to OP No. 3 and complaint is not maintainable and prayed for dismissal of complaint against OP No.3.

12.                              In view of the above said rival  contentions of both parties, we have considered the following points and we have recorded our findings thereon as follows for the following reasons-

                           POINTSFINDINGS

1. Whether the complainant is consumer ?                        Yes.
2. Whether OP No. 1 & 2 committed medical                             negligence and committed deficiency in servie ?           Yes.
3. Whether OP No. 3 committed deficiency in service ?    Yes.
4. What order ?                                              As per final order.

                                                    REASONS

13.                              As to Point No. 1 -   We have heard Adv. Solat Learned counsel for complainant and Adv. Shri S.S.Joshi for OP No. 1 & 2 and Adv. Raipure for OP No. 3.

14.                              Learned counsel for the complainant pointed out the factual matrix of this case and he argued that it was duty of OP No. 2 to keep attendant in the ward of complainant and complainant was admittedly handicapped person and OP failed to provide proper service to the complainant and nobody attended the complainant when she wanted to go bathroom for urination. He also argued that OP No. 2 has not given to any advice for filing insurance claim and has now come before this commission with false defence regarding insurance coverage.

15.                              Learned counsel for OP argued that OP No. 1 & 2 are charitable institutions and hence present disputes is not at all consumer dispute. He further argued that the complainant was advised to keep her own attendant and she also did not call anybody and she suffered fracture due to fall and OP No. 1 & 2 has not committed any negligence.  He pointed out that complainant had not paid full bills of OP No. 1 & 2 and prayed for dismissal for complaint.   

16.                              Learned counsel for OP No. 3 argued that OP No. 3 had not committed any deficiency in service and OP No. 1 has no insurance coverage. Only OP No. 2 is covered with insurance policy, but no claim was filed before OP No. 3 and hence complaint be dismissed.

17.                              Complainant was admitted in the hospital of OP No. 1 & 2 and therefore, she is apparently consumer of OP No. 1 & 2. OP No. 1 & 2 have themselves submitted that hospital of OP No. 2 was insured by National Insurance Company and thus indirectly complainant being beneficiary of the services provided by OP No.2, she is also consumer of OP No. 3. In view of these reasons, we answer point No. 1 affirmative.

18.                              As to Point No. 2 -   In the present case, the treatment given by OP No. 2 was in respect of the fracture caused after the fall of complainant. OP No. 1 & 2 has not disputed regarding the treatment given to complainant, the only important defence taken by OP No. 1 & 2 is regarding no negligence in the present case. OP No. 1& 2 have mentioned that, they provide round the clock services of qualified nurse and attendant in the hospital. However, when there was requirement to patient to going bathroom such services at all not provided. It was known to the officers and staff members of OP No. 2 that during the night of said unfortunate incident, the complainant was not having her own attendant. Hence, it was duty of OP No. 2 to provide proper services of staff to the female member patient/complainant. Apparently, OP No. 2 did not provide such services to a patient who was already handicapped.  The learned counsel for the complainant has rightly relied on the observations in the judgment of Hon’ble NCDRC New Delhi in the case of National Hospital and Medical Research Centre Vs. Harsh Ashok Lala,  III (2021) CPJ 195 (NC). In this case the Hon’ble Commission has made the following observation.

    Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d), 21(b)-Medical Negligence-Fall from wheel chair-suffered ‘head on fall’ –Negligence of medical staff-Deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence Revision-Complaint came to Petitioner/Hospital for follow-up checkup after her spinal surgery-She was very rashly and negligently wheeled from hospital corridor, on ramp without putting seat belt-She suffered ‘head on fall’ from wheelchair and sustained fracture of left (ankle) lower end fibular tip—Prima-facie, this case does not fall strictly in medical negligence-Case relates to deficiency in service and an act of omission from hospital staff-Wheel chairs are usually thought of medical device that is meant to help those who are injured or have physical challenges; they can also be source of injury when not properly used-Most wheel chair injuries that happen in medical setting due to the negligence of medical staff and such could be easily prevented by hospital or nursing home-Patient underwent mental agony and physical trauma-Direction issued to Petitioner to pay Rs.3,51,000 to complainant is upheld.

In view of the above observations, it is clear that the same are squarely applicable to the facts of the present case.In addition to this OP No. 2 though insured has never advised to complainant to lodge insurance claim so as to help poor patient.The complainant has therefore established deficiency of service by OP No. 1& 2 in this case. Hence, we answer point no. 2 in the affirmative.

19. As to Point No. 3 -   In the present case, it is not disputed that, complainant was not advised to lodge insurance claim with OP No. 3.  However, the negligence at the hands of OP No. 1 & 2 is professional negligence. The OP No. 2 has produced the copy of receipt and policy schedule. OP No. 2 has paid total amount of Rs.56,126/- and the amount of Rs.48,805/- is paid on account of the premium for the policy bearing no.281107491710000005. According to this policy, professional indemnity coverage is provided to Swamy Vivekanand Medical Mission Hospital and therefore, OP No. 3 is liable to pay compensation on account of professional indemnity.  OP No. 3 has not provided any such compensation and has also not shown any willingness to provide the compensation eventhough there was no previous claim. This shows deficiency in service on the part of OP No. 3 so answer of point no. 3 in the affirmative. 
20. As to Point No. 4 -   As the complainant has established deficiency of service by OP No. 1 to 3, she is entitled declaration to that effect. The complainant has claimed refund of the expenses of Rs.47,023/- alongwith interest. However, those are the hospital expenses for the treatment taken by the complainant and in our opinion the same can not be refunded.  As complainant suffered physical and mental injury due to deficiency in service by OP No. 2. The complainant is also entitled for just reasonable compensation. The complainant already being the handicapped person was required to face the another physical injury causing fracture. It also resulted in continuing the further treatment in the hospital. We therefore find that, the compensation of Rs.5,00,000/- in the facts and circumstances in the present case is just and reasonable and the amount of Rs.15,00,000/- claimed by complainant is quite excessive. The complainant is also entitled for reasonable amount of Rs.20,000/- towards litigation cost this case.

Hence, for all the above reasons, we proceed to pass following order.

                                       ORDER

1. The complaint is partly allowed.  
2. It is hereby declared that, OP No. 1 to 3 committed deficiency in service qua complainant.
3.   OP No. 1 to 3 are directed to pay jointly and severally the compensation of Rs.5,00,000/- on account of physical and mental harassment of the complainant.
4. OP No. 1 to 3 are directed to pay jointly and severally Rs.20,000/- towards the cost of the complaint.
5. The order shall be complied within 45 days from date of receipt of the order copy.
6. Copy of the order shall be supplied to all the parties free of cost.