PER MR.B.S.WASEKAR, HON’BLE PRESIDENT

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, she was suffering from Obesity, Sleep Apnea, Parathyroid Adenoma, Laminectomy, Backache and Decompression of L3 L4 L5.  She conducted various medical investigations in the hospital of opponent.  Major surgery was performed on her on 24^th September, 2012 and 28^th September, 2012.  She paid Rs.3,56,908/- to the opponent towards various services by the opponent.  She was discharged from the hospital on 2^nd October, 2012.  She was advised for follow up with Dr.Sanjay Agarwal, Dr.Reeta Dala and Dr.Phulrenu Chauhan on 9^th October, 2012 for operative site dressing.  On 9^th October, 2012, she was accompanied by her husband in the hospital.  At about 13.15 hours, at the entrance of the hospital, she requested uniformed security guard present on the gate to arrange wheel chair and call customer care staff to take her to the clinic of Dr.Agarwal.  The security guard arranged the wheel chair.  The complainant requested the security guard to put seat belt but he ignored.  The security guard pushed her on wheel chair in a rash and negligent manner which resulted in a fall from the wheel chair near the hospital’s ramp and suffered severe pain in left ankle.  Her tip of lower end of Fibula(L) got undisplaced.  She was made to stand in queue to pay and get her service voucher for x-ray.  Her husband rushed to emergency side of the building.  The complainant was attended by assistant of Dr.Agarwal at about 2.25 P.M.  She was tied sugar tone split for (L) leg and was advised to remove it after five days.  She was asked to purchase Aircast Ankle Brace for Rs.4,300/-.  The hospital was requested for reimbursement but the hospital refused.  The hospital administration refused to accept the complaint against security office.  The hospital was requested to arrange walker and ambulance to reach her at her house but the hospital refused.  F.I.R. was lodged on 21^st October, 2012 about the incident.  Due to this incident, the complainant was disturbed and traumatized.  The hospital authorities are responsible for her financial and other losses.  The hospital authority refused to take note of complainant’s legal right.  The complainant sent final notice dated 20^th May, 2013.  The hospital authority admitted their guilt and wrongful act of their staff but the hospital denied their liability.  Therefore, the complainant has filed this complaint for monetary compensation of Rs.16 Lakhs towards grievous hurt, mental trauma and financial loss.  She has also claimed legal cost of Rs.50,000/-. 

2)                The opponent appeared and filed written statement.  It is admitted that the complainant is the old patient.  There was no medical negligence or deficiency in service on the part of the opponent.  Police complaint was not lodged on the same day.  It was lodged on 21^st October, 2012.  The complainant has made contradictory allegations in this complaint and in her police statement.  The complainant had no business to approach the guard for arranging the wheel chair.  Her husband could have summoned the concern staff therefore, negligence can not be attributed to the hospital.  The claim of the complainant is not based upon the well recognize principles.  It is admitted that the complainant met with an accident on 9^th October, 2012 and she was taken to O.P.D. on the same day.  The preliminary report was prepared by Dr.Ganesh as “undisplaced fracture lower end fibular tip left”.  Dr.Ganesh is a junior doctor.  Subsequently, she was examined by Dr.Sanjay Agarwal.  There was no fracture or dislocation.  There was large soft tissue swelling around the ankle joint.  Suitable medicines were given.  On 15^th October, 2012, the complainant came for follow up.  On X-ray, there was no fracture.  As per opinion of Dr.Agarwal, it was a minor sprain.  There is no material on record showing that the hospital staff/security guard was involved in the said accident.  The notice issued by the complainant was duly replied.  It is correct that the complainant paid Rs.4,89,237/- towards previous treatment prior to 9^th October, 2012.  The complainant is not entitled for refund of the same or for compensation of Rs.16 Lakhs.  The complainant has filed false police complaint.  The opponent is a public charitable trust with a object to render effective medical care to all people.  The complainant was the patient of multiple medical problems of Parathyroid, Diabetes, Obesity and Backache.  The complainant was satisfied with the services rendered by the hospital.  On 9^th October, 2012, when the complainant came for follow up adequate care and caution was taken during transportation.  The complainant sustained a fall which was purely accidental resulting in soft tissue injury around left ankle.  The complainant was immediately attended and treatment was given.  The complainant has filed this complaint for exaggerated claim.  It is liable to be dismissed with cost.  

3)                After hearing both the parties and after going through the record, following points arise for our consideration.

POINTS

REASONS

4) As to Point No.1 & 2 :- According to the complainant, she was suffering from various diseases and she conducted various medical investigations in the hospital of the opponent.  Major surgery was performed on her on 24^th September, 2012 and 28^th September, 2012.  She paid charges Rs.3,56,908/- to the opponent towards various services provided by the opponent.  She was discharged from the hospital on 2^nd October, 2012 with advice for follow up on 9^th October, 2012.  Accordingly, she attended the hospital on 9^th October, 2012.  At the entrance of the hospital, she requested the uniform security guard to arrange for wheel chair and to call customer care staff to take her to the clinic of Dr.Agarwal.  Security guard arranged the wheel chair.  The security guard pushed her on wheel chair without putting the belt which resulted in a fall from the wheel chair and she suffered severe pain in left ankle.  Assistant of Dr.Agarwal attended her.  She was tide sugar tone split for (L) leg and was advised to remove it after five days.  She was asked to purchase Aircast Ankle Brace for Rs.4,300/-.  The opponent/Hospital refused to reimburse.  In para 9 of the written statement, the opponent admitted that the complainant met with an accident on 9^th October, 2012 and she was taken to O.P.D. on the same day. It is also admitted that as per preliminary report prepared by Dr.Ganesh there was undisplaced fracture lower end fibular tip left.  It is further stated that Dr.Ganesh is a junior doctor.  The complainant was examined by Dr.Sanjay Agarwal subsequently.  As per the opinion of Dr.Sanjay Agarwal, there was large soft tissue swelling around the ankle joint.  It was a minor sprain.  In para 18 of the written statement, the opponent has admitted the payment of charges Rs.4,89,237/- towards previous treatment prior to 9^th October, 2012.  In para 21 (c) of the written statement, the opponent has admitted that the complainant was a patient since 1998 for multiple medical problems.  She was successfully operated.  As per para 21 (f) of the written statement, on 9^th October, 2012, the complainant came for follow up with Dr.Agarwal, though adequate care and caution was exercised during her transportation, the complainant sustained a fall which was purely accidental resulting in soft tissue injury around left ankle.   From these admissions by the opponent in the written statement, it is clear that the complainant was old patient of the opponent hospital.  She availed the services and paid charges to the opponent/hospital.  She was called for follow up on 9^th October, 2012 and accordingly she attended the hospital.  According to the complainant, security guard was requested to arrange the wheel chair and to call the customer care staff to take her to the clinic of Dr.Agarwal.  Security guard arranged the wheel chair but ignored the instructions of the complainant to put seat belt thereby she fell down and sustained injury.   

5)                As discussed above, the opponent has not disputed that the complainant attended the hospital for follow up.  She fell down from the chair in the hospital premises.  According to the opponent, it was not the job of security guard to take her to the cabin of Dr.Agarwal.  The complainant has also not named the said security guard.  On the other hand, it is submitted by the complainant that the opponent/hospital is big having many staff members.  She does not know the name of the said security guard.  It is true that the opponent/hospital is big hospital having many staff members.  Therefore, patient is not expected to know the names of the staff members.  The incident was immediately reported to the hospital authority therefore, it was the responsibility of the hospital authority to find out the concern security guard.  It appears that the hospital authority neglected to find out the erring staff member.  At this juncture, the complainant has placed reliance on the judgment of the Hon’ble Supreme Court in Appeal (Civil) No.4024 of 2003, in the case of Smt.Savita Garg –Versus- The Director, National Heart Institute, decided on 12^th October, 2004.  In page 8 of the judgment, the Hon’ble Supreme Court has held as under :

It is very difficult for the patient to give any detail that which doctor treated the patient and whether the doctor was negligent or the nursing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition. It will be an impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act, leaving the claimant high and dry. We cannot place such a heavy burden on the patient or the family members/ relatives to implead all those doctors who have treated the patient or the nursing staff to be impleaded as party. It will be a difficult task for the patient or his relatives to undertake this searching enquiry from the Hospital and sometimes hospital may not co-operate. It may give such details and sometimes may not give the details. ……………

The burden is greater on the Institution/ hospital than that of the claimant. The institution is private body and they are responsible to provide efficient service and if in discharge of their efficient service there are couple of weak links which has 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.

In view of the abovesaid law laid down by the Hon’ble Supreme Court, the opponent/hospital can not avoid its responsibility by saying that name of the security guard is not disclosed by the complainant.  It was the responsibility of the opponent/hospital to find out the concern security guard. 

6)                As per para 21 (f) of the written statement, the opponent has submitted that though adequate care and caution was exercised during transportation, the complainant sustained a fall which was purely accidental.  It is submitted by the complainant that the fall was due to negligence of the security guard.  In the abovecited judgment, page 17 and 18, the Hon’ble Supreme Court has held as under :

"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 skill of a reasonably competent doctor." 

It is further held as under :

Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities.

In view of the abovesaid law, laid down by the Hon’ble Supreme Court, the opponent can not shirk its liability by saying that it was purely accidental fall.  The complainant was the old patient having various diseases.  She was operated and was called for follow up.  Therefore, it was necessary to take proper care.  Thus,, there is apparent negligence of the staff of the opponent therefore, the opponent is responsible for the said incident.  The incident occurred in the premises of the hospital due to negligence of the hospital staff. Therefore, it was necessary for the hospital to give immediate treatment free of cost.  According to the complainant, she was asked to pay the charges.  Asking the charges for such treatment amounts to unfair trade practice.  The complainant has not made clear in the complaint about the charges for such treatment paid by her to the opponent/hospital.  She has stated that she was asked to purchase Aircast Ankle Brace for Rs.4,300/-.  The opponent/hospital is bound to reimburse the same. 

7)                The learned advocate for the opponent/hospital has placed reliance on the judgment of Hon’ble National Commission in Original Petition No.100 of 1993, in the case of Brij Mohan Kher –Versus- Dr.N.H.Banka, reported in 1995 CPJ (1) 99 and submitted that the complaint is liable to be dismissed with compensatory cost. In that judgment, the Hon’ble National Commission came to conclusion that it was a speculative litigation and therefore, it is liable to be dismissed with compensatory cost.  In the instant complaint before us, there is sufficient evidence on record to show the unfair trade practice on the part of the opponent. Therefore, the abovecited judgment is not applicable. 

8)                The complainant has filed this complaint for compensation of Rs.16 Lakhs.  It is submitted by the learned advocate of the opponent that the complainant has claimed exaggerated compensation.  As per evidence on record, the complainant suffered injury around the ankle joint. Claiming compensation of Rs.16 Lakhs for such injury is apparently exaggeration. The provision under section 14 of the Consumer Protection Act confers jurisdiction on the Forum to award damages for any loss or injury suffered by the party.  The injury includes mental agony and torture.  For compensation, the complainant has placed reliance on the judgment of Hon’ble National Commission in the case of Pravat Kumar Mukherjee –Versus- Ruby General Hospital & Ors., decided on 25^th April, 2005.  In this judgment, it was held as under :

It is also an established law that under the Act National Consumer Forum has jurisdiction to award compensation depending upon established facts and the circumstances of the case. While dealing with such contention in Charan Singh Vs. Healing Touch Hospital & Ors., (2000) 7 SCC 668, the Court observed that 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 change in the attitude of service provider. The Court pertinently 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”.

In view of the above guidelines of the Hon’ble National Commission, we think, compensation of Rs.1 Lakh will suffice the purpose.  Besides this, the complainant is entitled for cost of litigation Rs.10,000/-.  Hence, we proceed to pass the following order.

ORDER

1. Complaint is partly allowed.
2. The O.P./Hospital is directed to pay Rs.1,00,000/- (Rs.One Lakh Only) to the complainant as compensation within one month from today.  On failure, it will carry interest at the rate of 9% per annum from the date of this judgment till realization.
3. The O.P./Hospital is further directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as cost of this proceeding.
4. The above order shall be complied with within a period of one month from today.
5. Copies of this order be sent to the parties free of cost.

Pronounced on 30^th November, 2015