Per Mr.Shashikant A. Kulkarni, Presiding Judicial Member
[1] This is a consumer complaint under Consumer Protection Act, 1986 [hereinafter to be referred to as ‘C.P.Act’]. Complainant no.1 is mother of the infant who died in the hospital because of cardiac arrest resulted by septicemia.
Opponent no.1 is local governing body which runs hospital one at Sion and adopted government policies for awareness of health etc. Opponent no.2 is a nurse and employee of the opponent no.1. Complainants have not made the hospital in particular run by the opponent no.1 or doctors who have treated the infant, the deceased as parties to the proceedings
On 02/07/1999, there was a camp BCG vaccination. The complainant no.2 took her child of about 45 days to the camp for injection of vaccine. Opponent no.2 attempted to inject vaccine to the child.
It is stated that because of abrupt movement of the child, a needle from syringes separated and entered into the mouth of the child, and passed through oesoehagus. The child was rushed to the hospital. On that day [20/07/1999] itself, the surgery was performed, needle was removed from stomach of the child, but the parents of the child took away it in another hospital probably because of fear psychosis, but as recorded in the hospital paper of the opponent against the medical advice. The child was at Holy Family Hospital. On 04/08/1999 as per the papers from said hospital, another surgery was required to be performed on the child of one and half months under general anesthesia for removal of adhesions formed in the intestine.
Thus, there were two major operations on the infant.
The child could not survive, however and died after about a month in the hospital.
Alleging therefore, deficiency in service on the part of the opponents, the complainants claim compensation over Rs.17 lac from them.
[2] Opponents denied liability stating that there is no deficiency nor negligence. The incident took place was purely accidental and because of sharp and unexpected movement done by the child. There was no consideration paid for vaccination. The vaccination camp was free of cost. The complainants therefore are not consumers within the meaning of CP Act. By the accidental swallowing needle the child suffered injury. There was no carelessness on the part of the nurse. The opponents therefore prayed to dismiss the complaint.
[3] After taking out the case from sine-die list, it is expedited for hearing and disposal. The opportunities given to the parties for filing documents, written version, affidavit evidence to ensure decision of merit.
[4] We have heard the learned advocates of the parties.
Mr.Anant Vadgaonkar, leaned advocate for the complainant submitted that the best possible evidence available has been brought on record. The matter pertains to the year 2001. The mother has lost her child because of negligence of nurse. The programme of vaccination was State sponsored. Although there is no payment of fees made by the complainant, the complainants are consumers within the meaning of CP Act.
Placing reliance on authority MANU/SC/0836/1995 – Indian Medical Association vs. V.P.Shantha and ors. learned Adv.Prabhawalkar submitted that there is no evidence to hold opponent no.2 nurse negligent. The complainants are not consumers. Death of the child is unfortunate. But it was accidental. Because of sharp movement of the child, the needle accidentally gone in its mouth. The child was taken in another hospital against the medical advice which disentitle the complainant to charge deficiency or negligence on the part of the opponents.
[5] A core question raises in is as to whether complainants are consumers and there was deficiency in service on the part of the opponents.
Even if the arguments advanced by learned advocate for the complainants are accepted to hold that there was some negligence on the part of the opponent no.2 nurse which was the cause root of death of the child, entire burden of negligence cannot be imposed on the opponent no.2 nurse because the mother and grand mother of the child who might be present must have holding the child at the time of administering the injection of vaccine to the child.
There is a record of judgment of the criminal court acquitting the opponent no.2 from the charge of causing death of child by rash and negligent act punishable u/s.304-A of IPC. In any case, however, the legal custody of child was not entirely parted with for vaccination of the child.
The performance of the operation in the hospital of the opponent on the stomach of the child to remove the needle and another operation at Holy Family Hospital are the incidentally and compulsory things which doctors did to make an attempt to save the child. But the child could not be saved.
In law, all kinds of services rendered by medical practitioners, except where services are rendered free of charges are brought within the purview of term ‘service’ mentioned in the CP Act.
Service means service of discretion which is made available to a potential user but does not include the rendering of any service free of cost.
Death of the child by negligence of the employee in this case nurse of the opponent no.1 would have made both jointly and severally liable to pay compensation, but to invoke the jurisdiction of this Commission, it shall be proved on record that service rendered was not free of charge. The payment of token amount for registration purposes only would not alter the position.
Where there is right, there is remedy. The remedy may have been resorted under general law of torts, but for recovering compensation as a consumer within the meaning of CP Act, the complainant shall pay that he is consumer and opponent being service provider rendered services on payment of sum of money.
In cases for damages under torts for wrong burden on the party claiming compensation to discharge, is, to establish, that the tortfeasor committed wrong against mind, body, reputation or property of person complaining.
In absence of the proof that the complainant as recipient of the serviced rendered by the opponent, the charges have been paid, it is difficult to impose liability on the opponents to pay compensation. Although the State Commission has full sympathy with complainants as mother of child and grand mother.
[6] In view of the above discussion, we proceed to pass the following:
ORDER
- Consumer Complaint stands dismissed.
- Parties to bear their own costs.
- One set of complaint compilation be retained. Rest be returned to the complainant forthwith.
- Certified copies of the order be furnished to the parties forthwith.
Pronounced
Dated 6th April, 2015.
