Kerala

Idukki

CC/99/2017

Sindhu Vinod - Complainant(s)

Versus

The District Collector Idukki - Opp.Party(s)

27 Oct 2021

ORDER

DATE OF FILING : 22.5.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the 27^th day of October, 2021

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

CC NO.99/2017

Between

Complainants : : Sindhu Vinod, W/o. Vinod,

Puthenpurayil House,

Karimannoor P.O.,

Idukki – 685 581.

(By Adv: Ajimon K.P.)

And

Opposite Parties : 1. The District Collector, Idukki,

Representing the Government of Kerala,

Painavu P.O., Idukki.

2. The District Medical Officer,

Painavu P.O., Idukki.

3. Dr. Khayas, S/o. E.P. Kasim,

Inchakkattu House,

Karimannoor P.O., Idukki – 685 581.

4. Vipin J.,

Health Inspector,

Primary Health Centre, Karimannoor,

Karimannoor P.O., Idukki – 685 581.

5. Seena M. Raj,

Junior Health Inspector,

Primary Health Centre, Karimannoor,

Karimannoor P.O., Idukki – 685 581.

6. Anie Joseph,

Head Nurse,

Primary Health Centre, Karimannoor,

Karimannoor P.O., Idukki – 685 581.

7. Noushad,

Junior Health Inspector,

Primary Health Centre, Karimannoor,

Karimannoor P.O., Idukki – 685 581.

[By Adv: K. Pradeepkumar

(for OPs 3 to 7)]

(cont....2)

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O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

1 . Complaint filed under Section 12 of Consumer Protection Act, 1986, seeking compensation for medical negligence. Facts, in brief, are as here under:

2. Complainant was diagnosed with TB upon examination by doctors at Malankara Orthodox Cyrian Church Medical College on 12.12.2015. Thereafter she had approached primary health centre, Karimannoor for treatment on 23.12.2015. She was treated there by doctors and health staff from 23.12.2015 onwards, treatment was in 2 schedules. First schedule had began on 23.12.2015. On that date, opposite parties 3 to 6 had commenced her treatment. Complainant had started taking medicines as per directions given by opposite parties 3 to 6, via one Hajira, DOT provider, in accordance with treatment norms of TB patients prescribed by Government. As per the 1^st schedule, complainant has to take 8 tablets on Monday, Wednesday and Friday every week. DOT provider/mediator was informed about treatment schedule also. After expiry of 1^st schedule, complainant had commenced taking medicines as per 2^nd schedule. Opposite parties 3 to 6 had directed her to take 13 tablets on Monday, Wednesday and Friday every week. Complainant had her suspicions regarding the dosage prescribed on the 1^st day itself of 2^nd schedule and she had conveyed those to her husband. When contacted by husband of complainant, opposite parties 3 to 6 had re-affirmed the dosage prescribed as per 2^nd schedule and advised to continue the treatment as such. Hence complainant had stuck to the schedule prescribed and had consumed medicines accordingly. In the 1^st week of March 2016, she experienced (cont....3)

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severe body pain and sought treatment at Malankara Church Medical College Hospital. On 28.3.2016, when only one strip of tablets remained for the 2^nd schedule, husband of complainant had informed opposite parties 3 to 6, accordingly. On that date, complainant had gone to Kolenchery Medical College mentioned above. On 28.2.2016 itself, upon being informed that only one strip of medicine remained, 7^th opposite party had clandestinely obtained used tablet strips and treatment card from DOT provider Hajira and had substituted it with a fraudulently created treatment card prescribing a revised schedule of treatment which contained correct dosage. Medicines remaining with the DOT provider in excess of correct dosage were also collected from her. 7^th opposite party had then entrusted corrected treatment card with the daughter of complainant and had asked her to inform the complainant to contact him over phone after giving her his number. On 30.3.2016, complainant had sought treatment from Dr. Jijo Oommen Roy of Kolenchery Medical College Hospital. After due enquiries, about medicines taken by complainant for her TB affection, said doctor had informed her that she was given an over dose of TB medicines which was detrimental to her health. Medicines which were to be consumed over a time span of 4 months were consumed by her within one month. As advised by the doctor at Kolenchery Medical College hospital, complainant had sought for expert treatment at Amritha Institute of Medical Sciences, Kochi. Complainant still suffers joint pain owing to excess intake of TB medicines, liver of the complainant was severely affected. She is unable to take medicines recquired to maintain her health. Opposite parties 2 to 7 are receiving their salary and other benefits from the tax collected from general public which includes the complainant also. They were bound to exercise (cont.....4)

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reasonable care in the treatment given by them to the public including complainant. This was not done. Complainant’s health had deteriorated due to negligence of opposite parties 3 to 7. Complainant has therefore claimed a compensation of Rs.19 lakhs from opposite parties owing to the deficiency in service given by them along with costs of Rs.25,000/- .

3. Opposite parties 1 and 2 have entered appearance through Government Pleader. 2^nd opposite party has filed detailed written version. No version was given by 1^st opposite party. Incidentally it would be pertinent to note that opposite parties 1 and 2 are, probably, impleaded herein on the principles of vicarious liability for the acts of remaining opposite parties. Contentions of the 2^nd opposite party are briefly narrated here under:

4. According to 2^nd opposite party, complainant had sought treatment for her TB ailment from Karimannoor Primary Health Centre on 23.12.2015. She was diagnosed with TB and her treatment was in accordance with Guidelines prescribed by Central Authority for nation vide TB eradication program. This treatment was free. As per guidelines of National Programme mentioned above, Dr. Lini Ann Joseph and 3^rd opposite party who was the Health Inspector at Karimannoor Primary Health Centre had advised the complainant in detail with regard to the medicines to be taken, intervals at which these are to be taken and other necessary information with regard to treatment schedule for TB. As per the National Program, complainant had to take medicines for 6 months in total, in 2 schedules. In the 1^st schedule, dosage is of 7 tablets each to be taken on every Monday, Wednesday and Friday in a week for 2 months. Thereafter in the remaining 4 months, complainant had to take 3 tablets on the 1^st day, one on the (cont......5)

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2^nd day, again 3 on the 3^rd day, one tablet on the 4^th day, 3 tablets on the 5^th day and 1 each on 6^th and 7^th day per week. Total tablets to be taken are 13 for one week in the aforesaid manner. To ensure that the patient is regularly intaking medicines in accordance with the schedule, DOT providers are selected from general public who are teachers, health workers and workers of Anganwadi. Medicines are entrusted with DOT provider and these are to be consumed under the direct supervision and presence of DOT Provider by patients. Besides, facilities are provided in the hospital itself for consumption of medicines. Despite this, even patients who are residing nearby hardly visit the hospital for correct intake of medicines. There are health inspectors and health nurses both Junior and Senior to supervise DOT provider. 1^st schedule of treatment was successfully completed by the complainant. On 4.4.2016, husband of the complainant had filed a complaint stating that complainant had taken overdose of medicines during 2^nd schedule. As directed by the 2^nd opposite party, on 12.4.2016, a team consisting of District Medical Officer, District TB Officer and Chest Physician of Idukki District Hospital had conducted enquiries with the complainant and other health workers. They had also sought for explanation of all concerned, recorded their statements and had submitted their report to the Director of Health Department. In so far, as present complaint is concerned, complainant had severe bodily ailments apart from TB. She had wilfully neglected to take medicines under the direct supervision of DOT provider. It is also mentioned by complainant that doctor of Kolenchery Medical College Hospital had advised her to continue intake of medicines prescribed for TB. Therefore her complaints, that her bodily ailments were due to excessive intake of TB medicines prescribed from Primary Health Centre, are incorrect. She had also conducted (cont....6)

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investigation of her kidney and liver from Kolenchery Hospital. Investigation has not revealed any ailment of these organs. Statement was given by earlier DOT provider, Hajira in this regard to the subsequent DOT provider Sindhu Vinod. No health issues were occasioned due to alleged overdose of TB medicine. Complainant had never sought the advice of doctors at Primary Health Centre during all these times though she was residing near to it. Her suspicion regarding prescription of overdose was not communicated to the doctor who had treated her. Instead she had conveyed her suspicion to her husband. Complainant was not taking medicines correctly or following the treatment schedule. She has not suffered any health issues owing to the alleged negligence from the side of Primary Health Centre medical staff. Complaint itself is not maintainable and same is to be dismissed with costs.

5. Opposite parties 3 to 7 have filed a joint written version. Their contentions are briefly discussed here under: According to opposite parties 3 to 7, complainant is not a consumer. She has not availed any service from opposite parties 3 to 7 for a consideration. Medicines supplied to the complainant or to her DOT provider was not for consideration. It was under a free scheme implemented by Government of India and WHO. Hence this Forum has no jurisdiction to entertain the complaint. There is no deficiency in service from the side of opposite parties 3 to 7. Complainant had collected medicines from Karimannoor Primary Health Centre under a special scheme, free of cost. She was reluctant to come to hospital and to seek necessary aid or assistance from concerned doctor or nurse regarding consumption of medicines. It is incorrect to say that husband of complainant had met (cont.....7)

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opposite parties 3 to 7 on account of suspicion of complainant regarding incorrect dosage. Further averment that only one strip of medicine was remaining on 28.3.2016 is also incorrect. At the continuation phase, 18 strips of medicines were furnished to DOT provider. Subsequently this DOT provider informed that she was not willing to continue as such. Hence on 18.3.2016 itself remaining medicines were returned by DOT provider. To avoid discontinuation of medicines, one strip was entrusted with complainant on 30.3.2016. Thereafter complainant had filed a petition before the then Chief Minister of State alleging negligence in her treatment. Said complaint was enquired into by District TB Officer. Upon direction from District TB Officer, Mr. Suresh Varghese, 3 more strips of medicines were supplied to complainant on 3 different occasions. Afterwards complainant had refused to take the medicines. Hence balance medicines were collected by Senior Treatment Supervisor of RNTCP (Revised National Tuberculosis Control Programme). Receipt for the same dated 29.6.2016 is submitted along with written version. Contention that medicines which were to be taken for a period of 4 months were consumed by the complainant within one month is not correct. Returned medicines by DOT provider will prove this allegation is false. Bodily ailment of complainant were not due to overdose of medicines, but owing to acute Hepatitis B, TB, obesity etc. She is also ANA (Anti Nuclear Antibodies) positive which is suggestive of the fact that she is suffering from auto immune disease. Symptoms stated by complainant tally with that of auto immune disease. Such condition can be caused even by intake of normal dose of medicines. Complications were not due to medicine toxity. Complainant has not availed any treatment from PHC Karimannoor or from opposite parties 3 to 7. She had only collected medicines as per diagnosis done from (cont.....8)

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Kolenchery Medical College Hospital. Services of 3^rd opposite party were not availed by complainant for diagnosis and treatment. As per RNTCP Programme, opposite parties had only furnished medicines. Complaint has no cause of action. Hence complaint is to be dismissed with costs.

6. After giving reasonable opportunity to both sides for taking steps, case was posted for trial. On the side of complainant, she along with 3 witnesses were examined as PWs 1 to 4 and Exts.P1 to P9 were marked. MO1 strip of medicines were identified by complainant.

7. On the side of opposite parties, 2 doctors were examined as DWs1 and 2 who are opposite parties 3 and 2 respectively. Ext.R1 was marked. Thereafter evidence was closed and both sides were heard in detail. Now the issues which arises for consideration are :

1. Whether complaint is maintainable ?

2. Whether opposite parties 3 to 7 were negligent in treating complainant ?

3. Whether opposite parties 1 and 2 are vicariously liable for the latches of remaining opposite parties ?

4. Quantum of compensation to be awarded?

5. Reliefs and costs.

8. Finding on Issue No.1 : Able counsel for complainant had briefly adverted to facts stated in petition and evidence admitted by both sides, with specific reference to P1 report; he would submit that complainant had proven her case of medical negligence by opposite parties 3 to 7. Able counsel would point out that latches in treatment is clearly mentioned in conclusion arrived at by enquiry officer who is, none (cont.....9)

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else but the 2^nd opposite party herein. It is specifically found that Junior Health Inspector Smt. Seena M. Raj had joined on 14.1.2016. Yet she has not contacted the patient, DOT provider or any other hospital staff or had given directions to them. Field workers have not visited the patient and DOT provider who were residing near to the hospital and no information was given to the DOT provider with regard to administration of medicines from hospital. Though Jonior A.H.I Seena M. Raj had informed the 4^th opposite party Mr. Vipin Raj that she was unable to see patient directly, no further action was taken by the 4^th opposite party. Medical Officer to whom Seen M. Raj had reported that complainant had refused to take medicines given by DOT provider has not taken any further steps in this regard. No directions were given, even when DOT provider complained about her busy schedule, with regard to administration of correct dosage of medicines to the patient. When the mistake was realised, card and medicine box were taken back. Old treatment card was substituted by a new card. Identity card taken from the patient was corrected and given to her

9. Learned counsel submitted that this conclusion in Ext.P1 would corroborate the case of complainant regarding medical negligence alleged against opposite parties 3 to 7.

10. Learned Government Pleader who appeared for opposite parties 1 and 2 would contend that services rendered from Karimannoor PHC to the complainant were absolutely free of charge. Government Pleader had, then, gone through the evidence of complainant in detail and submitted that there is negligence on her part and also on the part of DOT provider in intaking medicines as per the prescribed schedule. At any rate, able Government Pleader contended that no liability can be (cont....10)

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fastened upon opposite parties 1 and 2 in view of the decision rendered by Hon’ble Supreme Court in the matter of Indian Medical Association Vs. V.P. Shantha and others (1995 KHC 1006) and in State of Orissa Vs. Divisional Manager, LIC and another (1996 KHC 1142).

11. Learned counsel for opposite parties 3 to 7 would point out that it is also stated in P1 that after commencement of treatment, patient had not visited the doctor at Karimannoor PHC even once.PW1 had admitted of having taken medicines without supervision of DOT provider. It was not 3^rd opposite party who had treated PW1. Diagnosis of TB was done by her from a private medical college, namely, Kolenchery Medical College Hospital. Thereafter she had approached Karimannoor PHC for treatment. The doctor who had attended her has not been made a party to this case. She was only provided medicines free of cost from Karimannoor PHC. Allegations levelled against 7^th opposite party that he had clandestinely obtained the old prescription card along with strips of used medicines and had substituted new prescription card showing correct dosage are incorrect. Complainant was not taking medicines as per schedule given from Primary Health Centre. It is evident from her pleadings itself that she used to collect medicines from DOT by sending her children. It is clear that she was not taking medicines under supervision of DOT provider. It is also evident that complainant had not even visited the doctor who treated her at Primary Health Centre in connection with her treatment. No medicine toxicity was revealed. Evidence of PW3 proves that there was no medicine toxicity. He has also admitted during cross examination that patient had come to him while she was in acute stages of Hepatitis B. The doctor had also opined that Hepatitis B is spread by contact, either by blood or sexual. (cont......11)

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Hepatitis A could be caused even from food. That a case of medicine toxicity can be concluded only after conducting necessary tests. In the absence of any evidence with regard to medicine toxicity, it cannot be said that deterioration of health condition of complainant was owing to alleged overdose of TB medicines. Able counsel then repeated the contentions taken by able Government Pleader that complaint is not maintainable because opposite parties 3 to 7 have rendered services free of cost.

12. In reply, learned counsel appearing for the complainant would submit that complainant is a tax payer. Money collected as tax from the public, inclusive of complainant, is used for giving salary and other allowances to opposite parties. That being so, it cannot be said that the complainant has received any treatment or service free of cost.

13. Thus, these are the rival contentions. Since question of maintainability is also raised and pursued seriously, though there were no attempts to get it decided as a preliminary issue, we shall consider this question first. Opposite parties 1 and 2 are District Collector and District Medical Officer respectively. 3^rd opposite party is a doctor, attached to Karimannoor PHC as is seen from the evidence admitted in this case. Yet, his official capacity is not given in complaint either in cause title or pleadings. Opposite parties 4 to 7 are Health Inspectors and nurse concerned, of Karimannoor PHC. Admittedly, opposite parties 3 to 7 are staff of Karimannoor PHC. As mentioned in the outset itself opposite parties 1 and 2 are impleaded as such in vicarious capacity. Opposite party No.1 represents the State and opposite party No. 2 is senior officer of opposite parties 3 to 7. In view of these facts, it is pertinent to note that specific pleadings were addressed by opposite (cont....12)

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parties to the effect that complainant was given free treatment for Tuberculosis from Karimannoor PHC. It is pleaded by opposite party No.2 in his written version that treatment was as per the guidelines issued by the National TB eradication protocol. Treatment and medicines as per the said protocol was free of cost. Complainant does not have a case that she was charged for her treatment or that she have purchased medicines by paying its cost from said primary health centre. That being so, case of opposite parties 1 to 7 that the treatment and medicines administrated to the complainant from Karimannoor PHC was free of cost is to be taken as admitted by the complainant and therefore proved as such. As per Section 2(1)(o), any service free of charge or any contract of personal service will not come under the definition of service. After considering the definition of service given in Section 2(1)(o) of the old Act, in extenso, Hon’ble Supreme Court has observed that such service, so rendered free of cost, will not constitute service under the Act and therefore there is no consumer and service provider relationship between the consumer and medical institution which renders free services. This aspect is clearly pointed in paragraph 44 and 45 of the said judgement. In the very same judgement, Hon’ble Supreme Court has also considered the contentions now addressed by the learned counsel for complainant that opposite parties being Government Servants are in receipt of salary and other emoluments from tax paid by complainant and other citizens and therefore there is no free service as such and held that this will also not meet the test, specifically, in paragraphs 47 and 48 of the judgement. It was observed that the tax paid by the person availing services at government hospital cannot be treated as consideration or charge for the service rendered at the said (cont....13)

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hospital and such service rendered for free of cost does not cease to be so because the person availing services happens to be a tax payer. In the later judgement of Apex Court relied upon by the learned counsel for opposite parties 3 to 7, referring to the decision in Indian Medical Association case, has held that a Government Servant who is bound by service conditions being an employee of the Government, was rendering his services on behalf of State which was free of charge. That being so, such Government Servants are to be excluded from the purview of the Act from any claim of damages raised as such. Admittedly, opposite parties 3 to 7 are Government Servants. They are doctor, health inspector and nurse of Karimannoor PHC. As far as earlier DOT provider Hajira is concerned, she was summoned as witness by the complainant on her side. She or subsequent DOT provider are not even impleaded in this case as opposite parties. Obviously complainant has not grievances against them. The only case is of prescription of overdose of medicines. Complainant has not specifically mentioned in the complaint that opposite party No.3 had prescribed the medicines or had prepared her medicine intake schedule. In fact she does not specifically name any of the opposite parties as responsible for prescribing wrong dosage which, according to her, amounts to a case of medical negligence. Blame is placed at Opposite Parties 3 to 7 at large with no specific imputations. As far as P1 enquiry report is concerned, it is only an opinion rendered by 2^nd opposite party, after conducting an enquiry. Such an opinion will not constitute evidence required to prove a case of medical negligence. In this context, judgement rendered by the Apex Court in Civil Appeal No.7380/2009 in the matter of Dr. Harish Kumar Khurana (Appellant) Vs. Joginder Singh and others (Respondents) is relied upon by the learned counsel for opposite (cont.....14)

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parties 3 to 7. Contentions addressed in this regard by the learned counsel are substantive. Report covers the truth like ash covers embers hidden underneath. It was for the complainant to probe deeper and to uncover the facts on the basis of which P1 opinion was formulated. Having said so, we would desist from further discussions on the merit of case and revert to the issue at hand. From the pleadings and evidence addressed, it is clear that complainant was given treatment from Karimannoor PHC free of charge. Therefore opposite parties 3 to 7 cannot be mulched with any negligence which is culpable under the old Act of 1986. Complaint is not maintainable since service was rendered free of cost to the complainant and hence it cannot be regarded as service as defined under Section 2(1)(o) of the Act. Therefore, complainant cannot seek any remedy under this Act for the alleged negligence in treatment caused by opposite parties 3 to 7. Therefore no vicarious liability arises against opposite parties 1 and 2 also. Issue No.1 is answered accordingly.

14. Issue Nos.2 to 5 : As there is inherent lack of jurisdiction, it will not be proper for us to sift through the evidence rendered in this case to ascertain whether any medical negligence was there in treating the complainant from Karimannoor PHC. More so, when remedies open to her for torts in general as per common law are available as such, subject to the statute of limitations. Thereafter Issue Nos. 2 to 4 are answered as such.

 

(cont....15)

 

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15. Issue No.6 : In the result, this complaint is dismissed, under the circumstances, without cost.

Pronounced by this Commission on this the 27^th day of October, 2021

Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

Sd/-

SMT. ASAMOL P., MEMBER

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Sindhu Vinod

PW2 - Dr. Jijo Oommen Roy

PW3 - Dr. Velayudhan K.K.

PW4 - P.K. Hajara

On the side of the Opposite Party :

DW1 - Dr. Khayas E.K.

DW2 - Dr. Priya N.

Exhibits : On the side of the Complainant :

Ext.P1 - Enquiry report.

Ext.P2 - Certificate issued by Dr. Jijo Oommen Roy.

Ext.P3 - Certificate issued by Dr. Velayudhan K.K.

Ext.P4 - Medical ID card of the complainant.

Ext.P5 - Medical Reimbursement of MOSC Medical College, Kolenchery.

Ext.P6 - IP collection and appropriation of the complainant in AIMS, Kochi.

Ext.P7 - IP collection and appropriation of the complainant in AIMS, Kochi.

Ext.P8 - Discharge summary of the complainant in AIMS, Kochi.

Ext.P9 - Reply given as per RTI to the complainant.

MO1 - Strips of medicines. Forwarded by Order,

Exhibits : On the side of the Opposite Party :

Ext.R1 - Receipt of medicine box. SENIOR SUPERINTENDENT