BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.246/12.
Date of instt.: 04.10.2012.
Date of Decision: 02.07.2015.
1. Saneha (minor) aged about 10 years 2. Preeti (minor) aged about 6 years 3. Suresh Kumar s/o Om Parkash, rs/o Habri, Tehsil & District Kaithal, complainants No.1 & 2 are minors through their father Suresh Kumar as their natural guardian, complainant No.3.
……….Complainants.
Versus
1. Tyagi Nursing Home, Opp. DAV College & School, Habri Road, Pundri, Distt. Kaithal, through its owner/Director Dr. Pushpa Tyagi.
2. Dr. Pushpa Tyagi, Director of Tyagi Nursing Home, Opp. DAV College & School, Habri Road, Pundri, Distt. Kaithal.
3. United India Insurance Company Ltd. (Insurer of respondent w.e.f. 14.02.2011 to 13.02.2014 vide policy No.040100/46/10/35/00005776 retroactive dated 23.02.2011, through AICL, Regd. Office 54, Vinoba Puri, Lajpat Nagar-11, New Delhi-110024.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Rajish Vadhera, Advocate for complainants.
Sh. Amit Kaushik, Advocate for the opposite parties.
ORDER
(RAJBIR SINGH, MEMBER).
The complainants have filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the complainant No.3 was married with Asha Devi and out of the wedlock of complainant and Asha, two female children namely Saneha and Preet were born. It is alleged that the wife of complainant No.3 became pregnant in the month of January, 2011 and she started her treatment from the Ops from the very beginning. It is further alleged that on 11.09.2011, Asha was checked by the Op No.2 at her hospital and she advised some tests and ultrasound of Asha. It is further alleged that in the report of ultrasound, a single alive fetus was seen and no abnormality was observed. It is further alleged that on 17.09.2011, the labour pain was started to Asha and immediately, she was brought to the Ops No.1 & 2. It is further alleged that the Op No.2 advised some tests of Asha and started the treatment. It is further alleged that all the test reports were normal. It is further alleged that on 18.09.201, the Op No.2 took Asha in operation theatre at 10.00 a.m. and assured that the delivery shall take place upto 11.00 a.m. It is further alleged that the Op No.2 lingered on the matter on the pretext that the time is required for the delivery and they are trying their hard for the delivery. It is further alleged that during the aforesaid period of 10.00 a.m. to 1.00 p.m., the Op No.2 did not take any advise of the expert doctor and did not call for any surgeon. It is further alleged that at 01.15 p.m., Op No.2 brought the patient Asha on stretcher with oxygen and asked the complainant No.3 to take the patient at Kirti Hospital, Kaithal. It is further alleged that when the patient Asha was brought out from operation theatre of Op No.2, her condition was very serious. It is further alleged that the complainant No.3 immediately brought his wife Asha at Kirti Hospital, Kaithal where doctor checked the patient and immediately referred her to PGI Chandigarh and also told that the condition of the patient is very serious. However, when the patient was being shifted to PGI Chandigarh, she died on the way. It is further alleged that Asha Devi died due to negligence of the Op No.2 as the Op No.2 did not perform the requisite pre-operative tests and failed to consult the specialist doctors during 10.00 a.m. to 1.00 p.m. on 18.09.2011. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties appeared before this forum and filed written statement separately. Ops No.1 & 2 filed the joint reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; non-joinder and mis-joinder of necessary parties; that the complainants have concealed the true and material facts from this Forum. The important and material facts are that the complainant No.3 lodged an FIR No.250 dt. 18.09.2011 under Section 304-A IPC in P.S.Pundri regarding alleged incident and during investigation by the local police, it was the opinion of the Board of Doctors constituted by CMO Kaithal on 02.04.2012 that there is no negligence on the part of answering Op. the report/opinion is as under;-
”After going through the post-mortem report and pathology report and chemical examination report, is suggestive of the fact that no definite cause of death has been found in these reports, however, all circumstantial evidence are suggestive that the patient has died due to congestive Heart Failure”.
that the Op No.2 is well qualified doctor having recognized degree of BAMS (M.D.University Rohtak) and having an experience of more than 24 years regularly as a medical practitioner. In the Hospital Tyagi Nursing Home, the services of other doctors namely Dr. Satish Tyagi (BAMS) & Dr. Gaurag Tyagi (MBBS) were also available, who are also well qualified and experienced medical practitioners. There is no deficiency in service on the part of answering Ops. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. Op No.3 filed the written statement and stated that the Op No.3 accepted the written statement of Ops No.1 & 2 in totality and the same be considered as its written statement in the above-said matter.
4. In support of their case, both the parties led their evidence in the shape of affidavits and documents.
5. We have heard ld. counsel for both the parties and perused the case file carefully and minutely.
6. We have perused the complaint & reply thereto and also have gone through the evidence led by the parties.
7. On the basis of facts and circumstances of the case, we found that the wife of complainant No.3 became pregnant in the month of January, 2011. As the complainant has been working at Panipat, he used to get her wife checked-up from Panipat. On 11.09.2011 Asha, the wife of complainant No.3 was checked-up by the Op No.2 at her hospital but no treatment was given to her on the day with no history because she was already under treatment of some doctor at Panipat. The deceased Asha was advised to go for ultrasound and her report prepared by Dr. Nalin Sharma was found normal on that day. On 18.09.2011 around 11.00 a.m. the complainant’s wife visited for FTP with labour and after thorough examination, necessary test got conducted of the patient. The report of the test was:-
HB: 10 gm BT:2.3 minute CT: 5 minute BR Group: ’O’ Rh+ve H.I.V.: ve (Negative) BP: 130/90 mm of HG, 3rd gravida 2.0 (female) < 10 years & 5 years
With the development of labour pain, the following complication occurred:
C/o Dysphneo
Respiratory Distress
Sweating +
No chest pain
In view of above complication, the patient Asha was referred to Dr. Ram Kirti, Kaithl at 1.00 p.m. for further management and treatment. The counsel of complainant argued that no surgeon was present at the time of delivery but on the facts, it is found that no surgeon was required at the time of admission of patient Asha. When the patient felt problem in breathing, the services of Cardiologist and Physician MD were required which were not available at Pundri. Hence, the patient was referred to Kaithal for further management and treatment. The complainant No.3 lodged a FIR No.250 dt. 18.09.201 under Section 304-A IPC in P.S. Pundri regarding the negligence in the treatment by the Op. On 02.04.2012, a Board of Doctors was constituted by C.M.O. Kaithal and Board opined as under:-
“After going through post-mortem report and pathology report & chemical examination report, is suggestive of the fact that no definite cause of death has been found in these reports, however, all circumstantial evidence are suggestive that the patient had died due to congestive heart failure.”
As far as FIR is concerned, on the basis of report of Board of Medical experts and expert Doctors, the police has submitted its cancellation report to the Ilaqa Magistrate. Regarding the qualification of Op No.2, it is found that the Op No.2 Dr. Pushpa Tyagi is well qualified doctor having recognized degree of BAMS (M.D.University Rohtak) with 24 years experience in the field of medical.
8. The counsel of Ops argued that due and diligent medical care was provided to the complainant’s wife by the Ops. As counsel and Consumer Forums are not expert in medical sciences and must not substitute their own views over that of specialists. Since the opinion of the expert committee is available on the record to whom the matter was referred, we have to go by the expert committee report unless there are good enough reasons to disagree with the expert committee report. In the present case, no reliable evidence and substantial reasons have been submitted/presented by the complainant to reject the expert committee report. In this regard, we rely upon a judgment reported as SGT Chaman Lal & others Vs. Union of India, 2014(1) CLT page 139 decided by Hon’ble Delhi State Commission. The said citation is fully applicable to the present case. So, the complainants have failed to prove any deficiency on the part of Ops.
9. Thus, in view of above discussion, we find no merit in the present complaint and dismiss the same. A copy of this order be sent to both the parties free of cost. File be consigned to the record room after due compliance.
Announced.
Dt.02.07.2015.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
