Tamil Nadu

North Chennai

184/20121

R.Mohan - Complainant(s)

Versus

The Chairman, Chennai Port Trust - Opp.Party(s)

A.S.Mujibur Rahaman

06 Jun 2022

ORDER

                                                                     Complaint presented on :24.07.2012

                                                                Date of disposal            :06.06.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                              THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

C.C. No.184/2012

 

DATED MONDAY THE 06^th  DAY OF JUNE 2022

                                

R.Mohan,

Qtr.No.B-617 MPT,

Ch.P.T.Housing Colony,

Tondiarpet,

Chennai – 600 081.

 

                                                                                     …..Complainant

 ..Vs..

1.The Chairman,

Chennai Port Trust,

Chennai – 600 001.

 

2.Dr.Jayapal,(Died)

Chennai Port Trust Dispensary,

Tondiarpet,

Chennai – 600 081.

.....Opposite Parties

Counsel for Complainant                          : M/s.A.S.Mujibur Rahaman,

                                                                        K.Sivakumar

 

Counsel for  1^st opposite party                    : Mr.P.M.Subramaniam

 

Counsel for 2^nd opposite party                   : G.Prabhakar, N.Thirunavakkarasu     

ORDER

 

THIRU. G. VINOBHA, M.A., B.L., PRESIDENT :

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays direct the opposite party to pay a sum of Rs.19,50,000/- to the complainant from 18.02.2012 with interest at 18% p.a. till the payment of amount is made as compensation for guilty of careless and negligent treatment given by the 2^nd opposite party who is employee under the 1^st opposite party jointly and severly committed to the wife of the complainant and mental agony to the complainant and to pay a sum of Rs.5,000/- towards the cost of this litigation.

1.THE COMPLAINT IN BRIEF:

          The complainant’s wife late M.Tamilselvi was a chronic diabetic patient for the past 12 years. She was taking treatment for the past 3 years at the Chennai Port Trust Diabetic Centre on 14.02.2012  she had a treatment from Chennai Port Trust Dispensary Tondiarpet, Chennai and she was referred to Diabetic Centre.  On 15.02.2012 she had undergone Urine test and on 17.02.2012 medicines were prescribed by the Chennai Port Trust Diabetic Centre. On 17.02.2012 afternoon and night she consumed the medicines and thereafter she developed irritation in the chest.  On 18.02.2012 the irritation in the chest aggravated and therefore she again went to the Chennai Port Trust Dispensary where the 2^nd respondent was the duty doctor. She was provided treatment with trips of Glucose.  The 2^nd opposite party has not taken proper care to refer  my wife to the better hospital for treatment. At about 10.45 a.m and struggled for breathing and fell on my chest. I shouted a lot due to which the 2^nd opposite party arrived and check my wife condition and declared my wife was dead. If they have excised proper reasonable care and skill they could have very well saved the patient or if they have referred the case to a higher centre, there was enough time and more chances to save the patient.  The 2^nd opposite party has acted in a careless and negligent manner and liable for payment of compensation by the opposite parties 1 & 2^nd jointly or severally. Hence this complaint.

2.WRITTEN VERSION FILED BY THE 1^st OPPOSITE PARTY  IN BRIEF:

          As the administrative head of the Port Trust, on receipt of the representation dated 25.05.2012 from the complainant herein, I directed the Deputy Chairman and Chief Medical Officer to conduct appropriate enquiry in to the issue. Enquiry was conducted on 17.04.2012. Further the personal hearing was fixed on 05.06.2012 and the same was also intimated to the complainant and the 2^nd opposite party herein. The enquiry was conducted by the officials as  stated above and was closed. It is pertinent to mention here that whenever the complainant sought information under RTI Act, the same was disposed in accordance with provisions of RTI Act. It is clearly established that I am not the necessary party in the above proceeding.

3.WRITTEN VERSION FILED BY THE 2^nd OPPOSITE PARTY  IN BRIEF:

          The 2^nd Opposite party have graduated with MBBS degree form Madras Medical College and have also completed my MD (STD) and have been practicing as a doctor for the past 25 years without any blemishor complaint. On Saturday, 18.02.2012, Mrs.Tamilselvi aged about 48  years female wife of the complainant had come to the THCD Tondiarpet with the complainants of vomiting diarrhoc and burning sensation behind the centre of the chest. The patient came along with his neighbour one Mrs. Rani and the complainant was not present. The patient Mrs.M.Tamilselvi was very weak and severely dehydrated, it is customary to treat dehydrated patients with intravenous fluids (drips) immediately, depending upon the availability of time. Since THCD is only a dispensary, after examining patients depending on their illness, I refer patients to the various specialty OPDs and seriously ill patients to Chennai Port Trust main Hospital I am not entitled to refer patients to other corporate/private hospitals directly, but if any patient wishes so, they may on their own approach any private hospital. On 17.02.2012 afternoon and night, the patient had consumed the SAF Kit (Secnidazole Azithromycin and Fluconazole) prescribed by the Gynaecologist.  I further that considering the possibilities of acute renal shutdown (Acute Renal Failure ARF) due to severe dehydration, silent acute myocardial infarction with high blood sugar, the capillary Blood Glucost (CBG) was 366 mg/dl at THCD on 18.02.2012. Further due to the non-availability of ECG Machine and laboratory services at THCD, I had at the first instance itself advised to Mrs. Rani, the person who accompanied the patient that the patient should be shifted to the main hospital immediately. The complainant was not even present when all this happen. The patient was not really co-operative and refused to go to the main hospital and requested me to continue with basic treatment at THCD itself. Even though the patient was reluctant, I had started preparing to shift the patient to Chennai Port Trust main Hospital at any moment and had even requested for an ambulance. In the meantime, I had started administering Intravenous Fluid as stated above and had got back to my routine work of seeing other patients who were waiting for me. Suddenly, I was called to see the complainants wife around 11.20 a.m since she was gasping for breath and had great difficulty in breathing. Noticing that the patient was quite serious. I had immediately started cardio- pulmonary resuscitation (external cardiac massage) but the patient could  not be revived.

The complainant filed proof affidavit and Ex.A1 to A6 were marked on his side.  The opposite parties filed proof affidavit and Ex.B1 to B4 were marked on the opposite party side.

4. POINTS FOR CONSIDERATION:

1.Whether the complainant is a consumer as defined under the Act?

2. Whether there is any medical negligence on the part of opposite parties as alleged in the complaint. ?

3. Whether the complainant is entitled for the reliefs prayed in the complaint.     If, so to what extent?

5. POINT NO :1 and 2:-

          The complainant is working as a head constable in CISF and he was posted on duty in Chennai Port Trust and according to the complainant his wife Late.Tamilselvi was a chronic diabetic patient and on 14.02.2012 to 16.02.2012 she was taking treatment at Chennai port trust dispensary Tondiarpet for diabetics and medicines were prescribed to her and after taking such mediciness he developed irritation in the chest and hence 18.02.2012 he went to the port trust dispensary where the 2^nd opposite party was the duty doctor. According to the complainant at about 10.50 am, she developed severe chest pain and when the complainant requested 2^nd opposite party to refer her to another hospital for better treatment he refused and further contended that at 10.45am she struggled for breathing and therafter the 2^nd opposite party arrived and she was declared dead and which is due to the negligent treatment given by the 2^nd opposite party hence the police case was registered u/s 174 CRPC and the body was sent for postmortem later the complainant obtained the treatment details under RTI Act and later on postmortem report with expert opinion was given to the complainant on 18.05.2012 wherein it is alleged by the complainant that the expert has given opinion that his wife Tamilselvi died purely due to the lack of proper care by the treating doctors and further stated that when the patient is known diabetic and heart patient no effort has been taken to take ECG, and no effort was taken to shift the patient to a higher center having good facility and the doctors have wasted time by just giving intravenious fluids and antibiotics, and further contended that the hospital has fabricated records later on. 

6. But the 1^st opposite party contended that he is not necessary party in the proceeding and he is only administrative head and on receipt of  the complaint he directed the deputy chairman and chief medical officer to conduct enquiry which was conducted on 17.04.2012 and was closed.  In the version filed by the 2^nd opposite party it was contended that the complainants wife came to the out patient care clinic which is run with minimum basic set up and no money is collected from the patient for any treatment including medicines which were freely given by the Hospital and further contended that he has completed MD and has experience of 25 years and the patient attended the clinic on 17.02.2012 and 18.02.2012 it is found that her blood sugar level was high and she was advised to be admitted for which she refused and further contended that since she was severely dehydrated, it is customary to give intravenous fluids to such persons accordingly she was given the intravenous fluids and further stated that on 17.02.2012 the prior date the patient had consumed SAF kit prescribed by Gynecologist in addition to diabetic medicines and hence she developed vomiting and burning sensation behind her chest and to avoid dehydration she was given intravenous fluids immediately. The patient was accompanied by Mrs. Rani and not the complainant herein.  Though she was advised to be shifted to the main hospital she refused to go and requested to continue with the basic treatment at the clinic itself.  At any event arrangement was made to shift her to the main hospital for which a request was made for an Ambulance but in the meantime the at 11.20 am the patient was gasping for breathing and the patient could not be saved and according to the 2^nd opposite party there was no negligence in giving treatment to the patient as alleged in the complaint. 

7. During the pendency of the proceedings the 2^nd opposite party who has given treatment to the patient died on 24.08.20 and his death certificate also filed. Ex.A1 to A4 were representation given to the 1^st opposite party by the complainant regarding his wife’s death alleging negligent treatment on the part of 2^nd opposite party.  It is found from the Ex.B5 that the 1^st opposite party directed to conduct an enquiry on 05.06.2012, based on the complaint given by the complainant.  Even as per the version of the complainant an enquiry was conducted and it was closed.  It is found from Ex.A6 the final opinion in the postmortem report is given as “the deceased would appear to have died of effects coronary artery disease”.  It is further found from the medical records filed  by the complainant that on 18.12.2012 the patient came to the clinic at 10.30 am with complaints of  vomiting and diarrhea and she was given treatment by the 2^nd opposite party by giving intravenous fluids to avoid dehydration and was also given other antibiotics.  It is further found that the patient who was aged 47 years and wife of head constable in CISF at 11.20 am she was declared dead. Admittedly the patient was a known diabetic.  It is further found from the medical records filed by the 2^nd opposite party that she was attending the port trust clinic from the year 2008 onwards to control the diabetic and high sugar level.  On the complainant side the opinion of the expert and postmortem report was marked as Ex.A6.  But the said expert opinion has no signature or seal or date of the doctor who has given the opinion.  As per the expert opinion filed  by the complainant it is alleged that the patient died due to the negligence of the doctors who has given treatment to her.  But this expert opinion filed by the complainant has no evidentiary value since the doctor who has given the opinion was not cross examined to test the veracity of the contents of the opinion.  It is found that the complainant has filed CMP.107/2018 to produce the original expert opinion with doctor name and seal and the said petition was dismissed as not pressed on 11.01.2019 the complainant has filed the CMP.40/2014 to cross examine Dr.V.T.Balaramn inrespect of his expert opinion which is marked as Ex.B4 and the said petition was allowed, but on perusal it is found for his non appearance the evidence of Dr.V.T.Balaramn was closed on 20.10.2015.  CMP.126/2017 was filed to cross examine the doctor who has issued Ex.A6 opinion and 2^nd opposite party filed questionnaire and the same was ordered to be sent to one Dr.V.Murugesan, M.D. along with Ex.A6 and postmortem certificate.  But it is found that the said Dr.Murugesan has not given any opinion with regard to the questionnaire. It is further found that the questionnaire filed by the opposite party seeking reply from the expert Dr.V.Dekal was also closed as withdrawn by the 2^nd opposite party on 07.03.2019.  Therefore the doctors who has given expert opinion on both side were not cross examined by issuing questionnaire to them. The opposite party contended that the doctor who has given expert opinion on the complainant side was working in a Saveetha Medical college which is the private hospital, but the expert opinion Ex.B4 marked by the opposite party was issued by a Retire Professor of Govt. General Hospital and as per Ex.B4 the death of patient was due to uncontrolled diabetics which would have resulted in silent acute myocardial infarction.  According to Ex.B4 there was no negligence on the part of doctor and only to stabilize the patient intravenous fluid was given by the doctor and further the doctor was also planning to shift her to the main hospital by engaging the ambulance since ECG was not available at the clinic, but suddenly in an unexpected manners she died due to cardio respiratory arrest hence the opposite party contended that there is no negligence on their part. The expert opinion given by the complainant cannot be relied upon for the absence of the date and seal and name of the doctor.  But subsequently an  attempt was made by the complainant to file the original expert opinion of the said doctor. But at any event no reliance can be placed on the said opinion for want of cross examination by replying to the questionnaire.  Based on Ex.B4 and other medical records of the patient it is found that the doctor who has given treatment has taken maximum care by giving appropriate treatment to her and there was no negligence on the part of the 2^nd opposite party.  Though the 2^nd opposite party died during the pendency of the proceedings the complainant counsel by relying upon citations reported in (2014)1 Supreme Court Cases Page.384 contended that the 1^st respondent is vicariously liable for its doctors negligence.  The complainant counsel also relied upon the Chennai Port Trust employees regulations(Medical attendance in the Trust Hospital and Reimbursement of hospital charges)1994 and contended that in the case of those on deputation to the Chennai Port Trust from State/Central Governments or any other Ports/Public sector undertakings such incumbents are eligible for the free medical attendance in the Trust’s Hospital and reimbursement of hospital charges under these regulations and further contended that this includes extention of free medical treatment to the CISF personnel posted as Chennai port Trust and therefore contended that the complainant herein who is CISF personnel on deputation to port trust is also entitled for free medical treatment. The complainant also relied upon a decision of the NCDRC, New Delhi  Indrani Bhattarjee Vs. Chief Medical Officer, Farakka, Dated.09.08.2007 and contended that medical services provided by the employer in the hospitals for its employees are part of service conditions and therefore it is consideration for the serices rendered by the employee and therefore contended that the complainant is a consumer as defined in Sec 2(1)(o) of the Act.  But this decision will not apply to the facts of the present case.  The complainant is only CISF person on deputation and not employee of Port Trust.

8.But, on the other hand the opposite party relied upon decision reported in Appeal No. 283/95 SCDRC, Uttarpradesh  Dated:18.01.2018 Vidya Bhushan tiwari  VS Dr PK Singh  where in was held that “ In view of principle laid down by Hon’ble Apex Court in the above case it is crystal clear that if the service is rendered by a Government hospital free to all it is not a service defined in Section 2(1)(o) of the Consumer Protection Act 1986. Which is based on decision rendered by the Supreme Court in (1995)6 Supreme Court Cases Page.651 and contended that if the service is rendered by a Government hospital free to all it is not a service as defined in Section 2(1)(o) of the Consumer Protection Act 1986.  But if the service is rendered by a government hospital on payment of charges to some persons it shall be service defined in Section 2(1)(o) of the Consumer Protection Act 1986 even though free service has been provided to some persons. Even payment of a token amount for registration purpose cannot be treated as charges and when charges are paid for medical services by everybody availing the service or partially by those who can afford to pay and not by others such medical services will constitute service within the meaning of the definitions. A contract of service involves employer and employee relationship.  In the present case the complainant has no employer–employee relationship with the port trust. The complainant who is a CISF personnel was deputed to work at port trust.  As per the documents filed by both the parties no amount or charges was paid for the treatment.  Therefore there is a free medical service.   The opposite party one along with the Additional written arguments submitted the salary statement of an employee of Chennai port Trust wherein it is found that no amount was deducted in the salary towards the medical expenses. The complainant herein has also not filed any document to prove that there was deduction in his salary towards the medical expenses and treatment. Therefore it is clear that the treatment availed by the complainant’s wife with the opposite party is free medical treatment and hence as per the          definition of service the complainant herein will not come under the category of consumer as defined under Section 2(7)(ii) of Consumer Protection Act 2019.   It is further found as stated earlier that the complainant failed to prove the medical negligence as alleged in the complaint and Point no 1 and 2 answered accordingly.

9. Point No.3.

          Based on finding given to point no.1 and 2 it is found that the complainant will not come under the definition of ‘Consumer‘ and further the complainant failed to prove the alleged deficiency in service by the opposite party and hence the complainant is not entitled to any of the reliefs in the complaint and point No.2 is  answered accordingly.

In the result, the complaint is dismissed. No costs.

Dictated  by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 06^th  day of  June 2022.

 

MEMBER – I                MEMBER – II                                 PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 27.02.2012                   Representation to the Chief Medical Officer

Ex.A2 dated 12.03.2012                   Representation to the 1^st Respondent

Ex.A3 dated 16.04.2012                   Representation to the 1^st Respondent

Ex.A4 dated 25.05.2012                   Representation to the 1^st Respondent

Ex.A5 dated 28.05.2012                   Letter from the 1^st Respondent

Ex.A6 dated 18.05.2012                   Postmortem report and expert opinion

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTIES:

 

Ex.B1 dated 11.08.2008                   Diabetic Speciality Centre

 

Ex.B2 dated  11.07.2008                  O.P.Case  book (Family)

 

Ex.B3 dated  00.12.2010                  Chennai Port Trust Hospital

 

Ex.B4 dated  28.11.2012                  Expert Opinion

 

 

 

MEMBER – I                MEMBER – II                                 PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CC.NO.184/2012 DATED:06.06.2022 Order Pronounced,                In the result, the complaint is dismissed.  No costs.     MEMBER-I  MEMBER-II  PRESIDENT