Orissa

Rayagada

CC/330/2016

Goura Harinath - Complainant(s)

Versus

The Chier Executive of M/s Manipal Hospitals - Opp.Party(s)

Self

08 Apr 2021

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.330 / 2016.                                           

P R E S E N T .

Sri  Gadadhara  Sahu,                                           President-In-Charge.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri  Goura Harinath, S/O: Late Sukmarnath, Collectorate Road, Rayagada,      Po/Dist:Rayagada  (Odisha). 765 001. Cell No. 9777316666.                                                                                                                  …. Complainant.

Versus.

1.The Chief Executive  of M/S. Manipal Hospitals, Jagadamba Junction, 18-1-3, K.G.H.Down, Maharanipeta, Visakhapatnam- 530002.

2.Dr. J.K.Vijayakumar M.S. M.Ch(Uro), Urologist & Andrilogist, Medi  World, Uro care, Collectorate Junction, Visakhapatnam-2, Mobile No. 9290816249.                                                                                          ……...Opp.Parties

For the Complainant:-Self..

For the O.Ps.  :-  Smt. S.  Radha Pyari  and associates. 

.

JUDGEMENT

                The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non payment of compensation towards medical negligence in respect of non removing kidney stone from the body of the  complainant which was operated by the O.Ps for which  the complainant  sought for redressal of the grievances raised by the complainant.

On being noticed the O.Ps appeared through their learned counsel and filed written version refuting allegation made against them.  The O.Ps taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.Ps  prays the forum to dismiss the case against  them  to meet the ends of justice.

  Heard arguments from the learned counsel for the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

Undisputedly  the  complainant  had availed consultation / treatment from the O.Ps  hospital at Visakhapatnam w.e.f.  16.4.2016.  Undisputedly report shows   stones  in the right kidney measuring 18 and  urinary bladder  22mm  respectively  along with a problem in the spinal cord.  Undisputedly   on Dt. 27.4.2016  the operation was done at O.Ps hospital  for the removal of stones in the complainant’s  Right  kidney  urinary bladder.  On Dt.1.5.2016 the complainant was discharged  from the Hospital (copies of the discharge paper issued by the O.Ps is in the file which is marked as Annexure-I).  Undisputedly on DT.7.5.2016   the complainant  developed a urine  leak at the PCN site and  acute  continued  pain came from where  stones were removed. Undisputedly immediate  the  complainant was  consulted  a  local Doctor of  Rayagada town Dr. N.K.   Kundu for  further  treatment. (copies  of the prescription  is in the file which is marked as Annexure-2). Undisputedly  after   laboratory tests  from 15.6.2016 to 24.6.2016  and fresh  MRI scan   report  Dt. 25.5.2016  revealed  presence of a stones  after  operation.  Hence this C.C. case.

In view of the pleas taken  by the parties, the contentions  advanced and the material placed   on record, the following questions arises for our consideration in the present complaint:-

1. Whether the present complaint, filed by the complainant  has territorial jurisdiction?
2. Whether the complaint in the present complaint, is a ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Act?
3. Whether the O.Ps  were rendering any ‘service’ to the complainant within the meaning of the Section  2(1)(o) of the Act?
4. Whether was there any  ‘deficiency in service’ (negligence) on the part of the O.Ps within the meaning of the Section 2(1)(g) of the Act  > and
5. Whether the complainant, is entitled to any relief? If so, to what extent.

 

Question No.1:-

As per Sec.11(2) of the Consumer Protection Act “ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1.             The opposite party or each of the opposite parties, where there are           more   than     one, at the time of the institution of the complaint,          actually           and      voluntarily       resides or carries on business or has a   branch             office or          personally works for gain       ,or
2.             Any of the opposite parties, where there are more than one, at the time   of the institution of the complaint, actually and voluntarily resides         or carries on business or has a branch office, or personally works         for       gain, provided that in such case either the permission of the             District Forum is given, or the opposite parties who do        not reside or   carry on business or have a branch office   or personally   work    for       gain, as the case may be, acquiesce in  such institution; or
3.             The cause of action, wholly or in part, arises”.

                       

It is  submitted by the O.Ps in  its written version that  the O.P. No.1  as well as O.P. No.2   are not having any  office  at Rayagada district (Odisha) as such the complaint is not at all maintainable before this forum. But no where they have stated that they are not doing any business in the district of Rayagada(Odisha)  for their gain.   It is well known to all that the Vizag  town is nearer to Rayagada  which is 150  Km. distance and at Rayagada town(Odisha) there is  no medical facilities are available.  Due to non available of medical facilities  all the  patients   are referred  by the local doctor  to the Vizag  Hospital. In the present case in hand the  local Doctor Suresh Chandra Dey, Medicine Specialist  on Dt. 3.4.2016    had referred the complainant  to  Vizag  Hospital for  safe  operation (copies of the  prescription  Dt. 3.4.2016 is  in the file which is marked as  Annexure-I & 2).

 

•  

 

The O.Ps  are doing their business for gain all over  India through their agent. Hence, in the instant case, it is clear that the opposite parties  at the time of the institution of the complaint voluntarily carries on business  at Rayagada(Odisha) in shape of their agents  though there is no branch office  and personally works for gain  and   wrong  operation made by the O.Ps   also pointed  out  at Rayagada,  by another Doctor  hence the cause of action partly arose in the district of Rayagada(Odisha). Hence, this Forum has territorial jurisdiction to  entertain the present complaint.

In this connection this forum relied citation,   it is held and reported  in   CLT- volume – 81  ( 1996 ) Page No. 34  the hon’ble State C.D.R.Commission, Cuttack  where in  observed   “Complainant of Kendrapada purchased picture tube from the O.P. at Cuttack- picture tube did not function properly at Kendrapada- held –Kendrapara   Dist. Consume Forum has territorial jurisdiction and complaint maintainable.   After careful consideration  of all the  facts  Section – 11(2)© of the C.P.Act the petition of the O.Ps   regarding territorial  jurisdiction is  dismissed.

 

Question No.2 & 3 :-

            Since the above mentioned  questions are inter-connected, we would be discussing  the same jointly. 

            On   a  bare perusal  of the above   provisions of the Act, it is apparent that the definition of the word ‘consumer’ as defined in clause (d) of Sub-section (1) of  Section-2 of the Act, is of a wide sweep which also include a person who hires or avails of any service for a consideration which has been paid   or promised or partly  paid or partly promised or under any system of deferred payment and also includes any beneficiary of such service. The above provision of the Act, as contained in Section 2(1(d) of the Act, came up for consideration before the Hon’ble Supreme Court in case of Lucknow Development Authority Vrs. M.K.Gupta(1986-95)Consumer page No. 278 (SC) = 1994(1) SCC page No. 243 and their lordships of the Supreme Court in the  above said case have held:

            “To begin with the preamble of the Act when can afford useful assistance to ascertain the legislative intention.  It was enacted, to provide for the protection of the interest of  consumers.  Use of the word  ‘protection’ furnishes key to the minds of makers of the Act. Various definations and provisions which elaborately attempt to achieve  this objective have to be  construed in this light without departing from the settled view that a preamble can not control otherwise plain meaning of     a provision.  In fact, the law meets long felt necessary of protecting the common man from such wrongs for which the remedy under ordinary law for various reaons has become illusory… The work ‘consumer’ is a comprehensive expression.  It extends from a person wo buys any commodity to consume either as eatable or otherwise  from a shop, business, house, corporation, store fair price shop  to use  of private or public services.  The legislature has taken precaution  not only to define ‘complaint’, ‘complainant’, ‘consusmer’, but even to mention in detail what would amount to unfair trade practices by giving an elaborate definition in clause ( r)  and even   to define ‘defect’ and ‘deficiency’ by clauses (f) and (g) for which a consumer can approach  Forum/Commission.   The  Act thus aims to protect the economic interest of a consumer as understood in commercial  sense as a purchase of goods and in the larger sense of user of services”.

            As already stated the O.Ps in the reply/written version inter alia has taken a preliminary objection that in the given facts, the O.Ps were not  rendering any  ‘service’ to the complainant   within the meaning of Section 2(1)(o)  of the Act.  This very question also came up for consideration before the  Hon’ble Supreme Court – in case  Indian Medical Association  Vrs.  V.P. Shantha  & others 1986-1996 CONSUMER 1569 (NS): (JT 1995 (8) SC 119).  In the above  said case, it  was inter alia pleaded  before the Hon’ble Supreme Court that the medical practitioners belonged to medical profession and were subject to the disciplinary control of the  Medical Council of India and/ or  State Medical Councils,  constituted  under the provisions of the Indian Medical Council Act and, therefore, were  excluded from the  ambit of the Act  and the service rendered to a patient  by a medical practitioner did not fall  within  the  ambit and scope of ‘service’ as defined in Section 2(1)(o) of the Act.  Their Lordships of the Supreme Court,  in the above landmark decision, while rejecting the plea taken by the appellants, held:-

            “Service rendered  to a patient  by a medical practitioner at a non Government hospital/Nursing home where chares are required  to be paid  by the person  availing such services   by way  of consultation, diagnosis and treatment, both the medicinal and surgical, would/fall within the  ambit of  ‘service’ as defined in Section 2(1)(o) of the Act, 1986.”

            On the basis of material on record it is not in dispute that the O.P No.1 is a Private  Hospital    and   O.P. No.2   is a  doctor ( Urologist & Andrilogist) , who treats the  patient on payment of fees.  It is also not in  dispsute that the complainant has availed of the services of the O.Ps on payment of  fees(consideration)  and after receiving the fees  the O.Ps had performed operation of  the complainant. In the light of the  provisions contained  in the Act, law laid down by  the Hon’ble  Supreme Court in the above noted   decisions and in the presence of the facts, the correctness of which is not  disputed by  any of the parties, we have no hesitation in holding that the complainant, in the given facts is a ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Act and the  O.Ps were rendering ‘service’ within the meaning of Section 2(1)(o) of the Act.

Question No.4.

            The case of the complainant  in the  present complaint, as already stated, in brief is that there was negligence, deficiency in service, unfair trade practice on the part of the O.Ps while performing operation  as a result of which he sustained  monetary, mental,  inter alia also  physical loss.    On the other hand the O.Ps  in ;their written version  vehemently contended  that there was no negligence, deficiency in service on the part of the O.Ps and proper treatment as per established procedure was given to the complainant.

 

The present  complaint  arises for made  wrong   operation and in   post operation the  Hospital authorities   had    not taken  due care  to    complainant  for which   sustained  heavy  financial  loss, mental agony   to   the complainant.  That  there is no dispute that the complainant visited the  Clinic  of O.P. No.1 on Dt. 10.11.2016. Again  there  is no dispute  the O.P.1   check  up  the complainant on the above date.

For better appreciation this forum relied citations  which are mentioned here under:-

                It is held and reported in C.P.R.  2015(1) page No.245  where in the Hon’ble  National Commission observed   “Medical negligence  must be proved by cogent evidence”. 

                In the present   case  Medical negligence  stands fully established against  the O.Ps  showing   material on record  i.e.    scaning  report   Dt. 6.6.2016  Manipal Hospital,Vizag.

Again  It is held and reported in C.P.R.  2015(1) page No.314  where in the Hon’ble  National Commission observed  “Medical professional  is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of  care.”

In the present case the O.Ps   had  not  complied above  decision.

Further it is held and reported  in 2002 C..T. J page No.477 the  Hon’ble  National Commission observed that     the C.P.Act, 1986  passed by the Parliament with a hope that the interest of the Consumers has to be protected in order to curb the exploitation from the service providers and the C.P.Act is a special law over rides the general law of limitation.  Again Section-3  of the C.P.Act is worded in widest terms  and leaves no one in doubt that the provisions of C.P. Act shall be in addition and not in derogation of any other law  for the time being in force.  Thus even if any other Act provides  for any remedy to the litigant for redressal by that remedy a litigant can go to District Consumer Forum.  That remedy exists in any other law  which creates the right is no bar to the Forum assuming jurisdiction.  The word ‘In addition to ‘ in Section-3 makes it clear that the provisions of Consumer Protection Act are in addition to the existing laws in force and the C.P.Act provides additional remedies to the consumer.

                              

 Further the Apex court in its judgment  report in Dr.Laxman Balakrishna Joshi Vrs  Dr.Trimbak Bapu Godbole AIR-1969 SC Page No.128 and at page No.134 held in Para-11. “The duties which a doctor  owes to his patient are clear.  A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.  Such a person when consulted by a patient owes him certain duties, Viz : a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or  a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient.  The particular must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”

 

 

                Again Apex Court has held and reported in AIR-1998 SC 1801 the Hon’ble Supreme Court  has held in Para -9 as Follows ;

 

                 “ With the emergence of the Consumer Protection Act no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same is very few in number.  In recent days there has been increasing pressure on hospital facilities falling standard of professional Competence and in addition to all the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence.  That apart there has been growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.  In the former case a Court can accept that ordinary human fallibility  precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skill of a competent doctor..” ( Page No.1806) In para-10 it was further held that a gross medical mistake will always result in a finding of negligence”.

            Further we can imagine the shock, sorrow and pain of  the  complainant and their family when they are told by a Doctor that their problem started. The mental agony that they undergo cannot be measured in length of time.  Even the shock of the moment is one that would linger forever.

 

In this  context we perused the  citation of apex court  reported in  SCC 2004(5) page No. 65 where the Hon’ble Supreme Court  observed   that the concept of compensation  referred by  the   C.P. Act, 1986 and for that purpose to protect the interest of consumer has been in case after case given   wide  connotation and encompasses in its   fold each and every element of suffering including  mental agony, harassment, physical  discomfort, emotional sufferings  or injury  suffered by the consumer.  The provisions  of the   C.P. Act enable  a  consumer  to claim and empower the  forum to redress any injustice done.   The Forum is entitled to award not only  value of goods or services but also to compensate a consumer for injustice suffered by him.

It is held and reported in CPR 2004(1)  page No. 360  the Hon’ble  State CDR Commission, Andhra Pradesh where in observed  “Awarded compensation and cost for wrong diagnosis,  treatment  and apportionment of negligence”.

The Hon’ble  Supreme Court  on Dt.30.8.2017  in Civil Appeal No. 4761 of 2009  in para -16  where in observed

 

“A person coming to a Consumer Court  with a grievance of deficiency in service needs immediate relief. The very object of setting up Consumer  Forum was to provide speedy   remedy to a consumer.  The Consumer Protection Act, 1986  (the  Act) was  brought about in the back ground of world wide movement for  consumer protection. Frame work of the Act  is based on Resolution  Dated. 9^th. April, 1985  of the General Assembly  of the  UN to which India was a signatory.  The Act provided for protection  of interests of consumers in the form of quick and speedy redressal of grievances.  The provisions of the Act are in addition to and not in derogation of any other law.  Thus, the Act provides for additional remedies. The authorities under the Act exercise quasi-judicial powers. The award of damages is aimed  at bringing  about qualitative  change in the  attitude  of service provider”.

 

Recently in the cae of  Balaram  Prasad  Vrs. Kunal Shah and others 2014(1)SCC 384  the  Hon’ble  Supreme Court has again emphasized that  it is the duty of the courts to consider relevant facts and evidence in respect of fact and  circumsances of each and every case for awarding just and reasonable compensation.

 

Further it is held and reported in  AIR 1969 page No. 128  the Hon’ble Supreme court   where  in observed  “A   person who holds himself out ready to give medical advice and treatment   impliedly   holds  that he is possessed of skill and knowledge   for the purpose. Such a person when consulted by a patient owes certain   duties, namely, a duty of care in deciding whether to underake  the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that  treatment. A breach of any of these duties give a right of action of negligence against him”.

 

Again  It is held and reported in SCC 1994(1) page No. 243   in  the case of  Lucknow Development Authority Vrs. M.K.Gupta   where in the Hon’ble  Supreme Court observed  “The importance of the Act lies in promoting welfare of the society by enabling   the consumer  to participate directly  in the market economy. It attempts to remove the  helplessness  if a consumer  which he faces  against powerful business, described as,  ‘a  network of rackets’ or a society in which, ‘ producers have secured  power ‘ to ‘rob the rest’ and the might  of public bodies which are degenerating into storehouses of inaction   where papers do not move from one desk  to another as a matter of duty and responsibility, but for extraneous consideration, leaving the common man helpless, bewildered and shocked.  The malady is becoming so rampant, widespread and   deep  that  the society instead of   bothering, complaining and fighting against  it, is accepting  it as  part of life.  The enactment in these unbelievable  yet harsh  realities  appears to be a silver  lining, which may   in course of time succeed  in checking  the rot”.    

In the  above judgement the  Hon’ble Supreme Court further observed “That the authority empowered to function under  a  statute while exercising power discharges public duty; it has to  act  to  observe   general welfare in common good; in ordinary matters a common man  who has  neither the political backing nor the financial strength to match the  in action  in  public oriented  departments gets frustrated and it erodes the credibility  in the   system; where it is found that exercise of discretion was  mala fide  and the  complainant is entitled   to compensation for mental and physical harassment”.

It is held and reported in C.P.R. 2015(1) page No. 719   in the case of Govt. of NCT of Delhi Vrs. Smt. Himanchal Kumari & Ors the Hon’ble  National Commission where in observed “Once a patient is admitted in a hospital it is responsibility of Hospital to provide best service”.

It is admitted fact, that complainant  had undergone treatment in the  Hospital of  O.Ps and had paid a substantial amount of Rs.3,40,000/- to the  O.P.  Even after spending  substantial amount on the  treatment,  the O.P No.1 Hospital  was not  removed the stone from the  Kidney. After not getting positive response from the  O.P. No.1 hospital the complainant finally contacted   to  O.P. No.2 and cured  there  and  paid  a sum  of Rs.50,000/-  and for this  the complainant  under  gone further  treatment to  Berhampur  for  further treatment.

It is held and reported in C.P.R. 2015(1) page No 1   in the case of  Mr. K.Thirunavukkarasu  Vrs.   M/S. International Centre for Cardio Theoratic & Otrs   the  Hon’ble State  Commission, Chennai where in observed “Poor post-operative  care also comes within  purview of medical negligence”.

It is held and reported  in C.P.R.  2014(3) page No. 345 in the case of  Dr. G.Swaminathan  Vrs. G.Rajendran  the Hon’ble National Commission where in observed   “Consent from patient must be  taken in  specific manner”.

It is held and reported in C.P.R. 2014(4) page No. 678  in the case of  DR. Anil Jain Vrs.  Ramesh Kumar  & ors  the Hon’ble National Commission where in observed  “In all cases of medical negligence, where negligence   of doctor is visible by examining patient, report of expert doctor is not necessary”.

Undisputedly, the O.P. No.2 Dr. Vijaya  Kumar is having high professional  degrees but the circumstances of the present case do speak that they did not    exercise due care   and caution in performing  the operation  towards  removing of   stones  from  kidneys    in respect  of   left and right  side  hence  there was  breach of duty on his  part   and liability has to fastened against them for consequential damages suffered by victim.

No doubt, a doctor may  be held for negligence on two counts i.e. either the doctor is not possessed of requisite skill, which he professed to have possessed or he did not exercise with reasonable competence. It cannot be  disputed that a patient can not expect from a doctor to possess highest standard   of   expertise or skill in that branch  which  he practices, but at the same time the subsequent  events of the case have to  be taken into consideration while dealing with the case  of medical negligence, other wise no medical  professional  can be fastened  with liability even in the proven cases of medical  negligence  in his professional duty, as is evidence from the  instant case.

The complainant  approached the  O.P. No.1 Hospital   for treatment of     removing of   stones  from  kidneys    in respect  of   left and right  side. The  O.Ps   in a very  careless   and negligent  manner treated the complainant  and   not removed  the other stones  from the kidney  due to this the urine passed   in other side  

It is held and reported in CPR 2011(1) page No. 335 in the case of  R.G.stone  Clinic Research institute  Vrs.   Sheila   Bharihoke  the Hon’ble National Commission, where in observed   “Doctors are not expected to frighten   a patient under their treatment  of worst possible  consequences”.

It is held and reported in C.P.R. 2011 (4) page No. 11 in the case of Dr. Martin Joseph & Anr  Vrs.  Faizal  the Hon’ble National Commission, where in observed  “Failure to locate and remove foreign body from inside body amounts to medical negligence”.

It is held and  reported  in  C.P.R 2013 (3 ) page No. 526  in the case of Sun Flag Hospital  Vrs.    Shri Raghubir Singh Poswal  the Hon’ble National Commission where in observed “ Expert opinion is not necessary in all cases where negligence and deficiency in service of treating doctor is established from facts and circumstances of case”.

          It is held and reported in  CPR- 2006(2) page No.470 the  Hon’ble State  Commission, where in observed “Where doctor performed medical termination of pregnancy but obortion  remained in complete and remnants had to be removed in second operation, it would be a case of negligence  and deficiency in service.”

Being a professional doctor, O.P. No.2 and also O.P. No.1 had  deviated from his duty by giving wrong operation on  seeing his own defetcive diagnosis report  and false asurance to the complainant. The O.Ps  had rendered flawed service  to the complainant.  Hence the complainant has approached this forum seeking justice against such flaw or imperfect  service rendered to him.

It is held and reported in  NC & SC on Consumer cases Part- VI  page No. 9554(NS) where in the Hon’ble National Commission, New Delhi  observed “ Medical Neglience- deceased suffered injuries in road accident- taken to O.P. hospital where specialist not called to attend  on the deceased   at the time- no record of follow up  of the directions given by Specialist- transportation and medical escort not provied even though deceased in  serious condition-improper maintenance of  record- no explanation of missing  right of the deceased offered by O.P.- no case of medical  neglience leading to death  proved but lapses on part  of O.P. hospital  can be termed as negligence- O.P. hospital directed to pay compensation.”

As per law laid down by the Hon’ble Supreme Court in a catena of  cases  medical negligence  shall arise when there is failure in any or the following criteria :-

 

1. A duty of care whether to undertake a case.
2.  A duty of  care in deciding  what  treatment  to give and;
3. A duty of care in administration of the treatment.

 

A  breach of any of these duties will support an action for negligence  of the  patient.

 

We  are of the view that complaint need to be compensated for acts of  negligence on the part of  the O.Ps  which  we fix at Rs. 5 (five) lakhs. 

 

In view of the above  the O.Ps are directed to pay Rs. 5(five) lakhs to the complainant . The above payment shall be made  within 45 days from the  date of reeipt of this  order.

.NC & SC on consumer cases  part-VI  page No. 9843 (NS) 1986  to 2005.

Free  medical service also comes under the purview of the C.P. Act,1986.

Para  75.

In the present case, considering the facts and deficiency  in service  and  negligence towards post  operation   treatment     to the complainant  who was badly  suffered  due to negligence  on the part of the O.Ps,  compensation is  to be awarded not only on the basis of principles applicable in  Tort,  but on the basis  of Section-14 of the C.P. Act,1986  and interpretation thereof.   Section -14 of the C.P. Act confers jurisdiction on the  forum to  award damages for any  loss or injury suffered.  Injury would include  mental  agony and  torture.   In legal  sense  it may  constitute  actual loss or expected  loss and may extend to physical, mental  or even   emotional sufferings, insult or injury or loss.

NC & SC on consumer cases  part-VI  page No. 9843 (NS) 1986  to 2005  Para  -76

                Regarding  allowing of compensation to the complainant   this forum  relied citation which are mentioned  here under:-

                It is held  and reported    in 1986-2004 Consumer case page No. 7350 (NS)  Part-V ,  2000(2) CCC page No. 1 (NS),  2000(7) SCC page No. 668 in the case of  Charan Singh Vrs. Healing Touch Hospital & Ors.   where in the Hon’ble Supreme Court observed “ The Consumer forums are required to make an attempt to serve the ends of justice   so that  compensation  is awarded in an established   case  which not  only  serve the purpose  of recompensing the individual, but which also at the same time aims to bring about the  qualitative   changes in the attitude  of service provider.”

                The court  pertinently further observed  “It is not merely the alleged  harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is  in issue – it is  also the quality of conduct committed by the  respondents upon which  attention is  required to be  founded in  a case of proven negligence”.

NC & SC on consumer cases  part-VI  page No. 9843 (NS) 1986  to 2005  Para  No. 77.

                Keeping the  aforesaid principles in  mind, it would be just and reasonable to award compensation of   Rs. 10  lakhs  for mental pain and agony.   This may serve the purpose of bringing about  a qualitative  change in attitude of the  hospitals of  providing service to the human beings as human beings.   Human  touch is necessary, that is their code of conduct; that is their duty and that is what is required to be implemented in emergency or critical cases let them discharge their duty/social obligation of rendering  service without  waiting  for fees or for consent.

                In the result , the complaint is   allowed   in  part.   The  O.Ps are directed to pay  in all   Rs. 5 (five) lakhs to the complainant. There shall be no order as to costs.

NC & SC on consumer cases part-VI 1986 to 2005  page No. 9798  Para-40

          Keeping in mind the facts stated above we would refer to Spring  Medows Hospital  & Anr. Vrs. Harjot Ahluwalala & Anr. 1986 -1999 consumer page No. 3758(NS): 1998(1) CCC 23(NS): 1998(4) SCC 39  at 47,  wherein the Apex Court has specifically laid down the principles for holding  Doctors responsible in  similar situation. The Apex Court held that:

          “Gross medical mistake will always  result in a finding of negligence. Use of wrong drug or wrong gas during the  course of anaesthetic will  frequently  lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount  to negligence   in certain circumstances. A consultant   could be negligent  where he delegates    the responsibility  to his junior with  the knowledge that the junior was incapable of performing of his duties properly. We are indicating  these  principles since in the case in hand certain arguments had been advanced   in this regard, which will be dealt with while    answering  the questions posed by us”.

NC & SC on consumer cases part-VI 1986 to 2005  page No. 9798 Para – 41

          Thereafter, a similar view was expressed with regard to  burden of  of proof  in Savita Gar Vrs. Director National  Heart Institute reported  in 1986-2005 consumer cases Part-VI page No. 8997(NS): 2004  CCC  681(NS) : 2004(8) SCC 56 the Apex court observed that :

          “Once a patient is admitted in a hospital it  is the   responsibility of the hospital to provide the best service  and if it does not, then the hospital  can not take  shelter under the  technical ground that the surgeon concerned or the nursing staff, as the case may be, was not imp leaded, and therefore,  the  claim should be rejected on the basis of non joinder  of necessary parties.  In fact, once a claim petition is filed and the  claimant has  successfully discharged   the initial burden that the  hospital was negligent, and that as a result of such negligence the patient  died, then in that case the burden  lies on the hospital and the doctor concerned who treated that patient, that there was no  negligence   involved in the treatment. Since the burden is on the hospital,  they can discharge the same by  producing that doctor who  treated  the patient   in defense to substantiate   their allegation that there  was no negligence.  In fact  it is the hospital  which engages the treating  doctor  thereafter   it is their responsibility.  The  burden is greater   on the institution/hospital  than that on the claimant.  The institution is a private body and they are responsible   to provide efficient  service and   if   in discharge   of their efficient service  there are a couple   of weak links  which have caused  damage to the patient  then it is the hospital  which  is to justify  the same and  it is not possible  for the claimant to implead all of them as parties”.

NC & SC on consumer cases part-VI 1986 to 2005  page No. 9798  Para  -42.

          The  evidence which is reproduced  above leaves no doubt that  Annexure-    was deficient in discharge of  duties on the part of the O.Ps. Admittedly  the O.P. No.2  negligently  had not removed the  stone  from the kidney.

          Hence it is a case of gross medical negligence/mistakes by which the complainant is  living crippled vegetation life.

NC & SC on consumer cases part-VI 1986 to 2005  page No. 9798  Para No. 43

          The complainant is entitled to receive the compensation for the damages suffered by  him.  In our view, no amount would be sufficient to compensate the complainant.  The complainant has  stated  that he had  incurred  Rs.3,00,000/- towards hospital bills, medicines, the details of which have been given  in his complaint.  He has claimed Rs.11,00,000/- towards future expenses and damages.  Considering the suffering of the complainant and the mental agony  undergone by the complainant   and his family  members, we feel  that the amount  claimed as compensation is just and reasonable.    

The  complainant had  incurred  Rs.3 lakhs    for expenses in to running Vizag and Berhampur by hire Car from  time to  time towards check-up of health  along with family for   further treatment    besides  purchase of medicines and Lodging boarding expenditure.

          Due to negligence  of above doctor  the complainant  also claimed for loss of earning for the treatment period a sum of  Rs.2,00,000/- and  Rs.1,00,000/- towards  damages  for mental agony and  litigation  expenses.

Damages calculated on the basis of income for the whole remaining period of employment of the complainant.

Due to negligence of above doctor the complainant had gone to Berhampur  from time to time  since Dt. 30.7.2016  to  Dt, 10.4.2017  for further treatment  under  supervision  of Dr.Chandra Sekher  Tripathy, Professor of  Psychiatry, Berhampur, Dist:Ganjam, Odisha  and cured  completely(Copies of the Prescription  are available in  the file )

Further this forum observed the O.Ps are not rendering proper service to the complainant establishes their callousness and whimsical attitude. The  forum feel that the O.Ps services are deteriorating and does not follows professional  ethics.  Due to the same attitude  of the  O.Ps  the complainant deprived of  to get the good service from the O.Ps Hospital.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part  and considering the facts of the case we hold that the complainant should not be deprived of the amount of expenses which he had incurred for his treatment..

Hence to the meet the ends of justice the following order is passed.

                                                ORDER.

In resultant the complaint stands allowed in part against  O.Ps  on contest.

The O.Ps   are ordered to Pay  Rs.5,00,000/- (Rupees  ffive  lakhs)only   to the  complainant   towards  medical negligence.

This  is to  be  complied   by the O.Ps.  within 45 (forty five) days  from the date of receipt of this order. 

Copies of the order be served  on the parties free of cost  as per rule.

Dictated  and corrected by me. 

Pronounced on  this         8^th   April,  2021. 

 

                                    Member.                                                      President.