Bimla Rani aged 40 years wife of Late Shri Ashwani Kumar, r/o.H.No.B.I.1042, Chhawani Mohalla, Ludhiana.

(Complainant)

Versus

1. E.S.I. Hospital, Bharat Nagar Chowk, Ludhiana, through its Medical Superintendent.

2. Smt.Amarjit Kaur, Staff Nurse, ESI, Hospital, Ludhiana.

3. Smt.Sheela Staff Nurse, ESI Hospital, Ludhiana.

(Opposite parties)
O R D E R

1- This complaint under section 12 of Consumer Protection Act, 1986 stands instituted by Bimla Rani, complainant, claiming compensation of Rs.5 lac, on account of negligence and deficiency in service on part of the opposite party. Case of the complainant is that her husband of Sh.Ashwani Kumar who was a tailor by profession, had suffered ailment. Complainant working as labourer with M/s.Nagesh Knitwear, Civil Lines, Ludhiana was contributory to ESIC scheme of Punjab Government.

She was issued card no.56032295 (old) and 5603245 (new). Under ESIC scheme she was entitled for medical assistance scheme for her own treatment as well as full family members. That her husband fell ill and got him admitted to in opposite party no.1 ESI hospital, Ludhiana for his treatment on 22.4.2001. There from, he was discharged on 10.05.2001. A discharge card on 10.05.2001 was given to her husband by the dealing nurse of OP. no.1 hospital. The complainant being illiterate could not go through contents of the discharge card. Hence both of them were unable to read the name of the person recorded in the discharge card. On the basis of discharge slip the complainant purchased medicines from the Pharmacy of ESI hospital as mentioned in the discharge card and also purchased certain medicines from medical store.

On account of consuming medicines as referred in discharge card, health of the husband of the complainant started deteriorating day by day. Subsequently, he became serious compelling again to get her husband admitted in ESI hospital for his treatment on 26.5.2001. As his condition was serious, so he could not survive and died on the same day in the hospital. Consequently, complainant came to know that the hospital authorities on 10.05.2001 while discharging husband of the complainant had given him discharge card of some other patient named Raghubir Singh having ESIC card No.8661101. Said Raghubir Singh who was suffering from the problem of Tuberculosis (hereinafter referred as TB). Whereas the husband of the complainant was diagnosed of TB associated with asthma.

For patient of asthma, different medicines were to be administered, different from medicines given to patient suffering from TB. On account of wrong medicines administered to the husband of the complainant, caused his death. This happened on account of negligence on part of the staff of OP.1 hospital, as they handed over the discharge slip of Raghubir Singh instead of husband of the complainant. Hence on account of negligence on the part of OP.1 hospital and ignorance of the complainant he took wrong medicines not meant for his ailment.

2. Further case of the complainant is that for such negligence on the part of Ops, the complainant made many complaints to the authorities concerned as well as police officials such as SSP, Ludhiana, DGP, Punjab, Chandigarh, DIG, Ludhiana Range, Ludhiana, Hon’ble Prime Minister, Hon’ble Chief Justice of India, New Delhi and Hon’ble Director CBI New Delhi, but no action was taken by the concerned. Ultimately, approached Hon’ble Punjab State Human Rights Commission, Chandigarh, moved complaint, but in consequence ordered the complainant vide letter dated 28.03.2005, to file the said complaint before appropriate Forum for seeking justice. So, for deficiency on the part of opposite parties, claimed compensation from them.

3. Ops in their separate, but identical reply claimed that complaint is not maintainable; it is hopelessly time barred; that no cause of action accrued; she is estopped by her own act and conduct to file the complaint; that the complainant has not come to the court with clean hands and has suppressed material facts as her allegations on enquiry, as conducted by several authorities, were found false; that complainant is not a consumer under the definition of consumer because husband of the complainant took treatment free of charges without paying any amount and there is no deficiency in service or negligence on the part of the Ops.

However, it is conceded that husband of the complainant was admitted in the hospital of the Ops on 22.04.2001and was discharged on 10.05.2001. He was discharged in satisfactory condition and at the time of discharge, discharge slip prescribing medicines was handed over to the complainant. But it is denied on account of negligence discharge copy of somebody else was given to the husband of the complainant. Further denied that the complainant or her husband was illiterate and health of the husband of the complainant deteriorated due to consumption of medicines as alleged.

The patient purchased medicines from the market on production of discharge slip and she procured a bill from the chemist and the bill was in the name of Sh.Ashwani Kumar, husband of the complainant. The patient came to Op.no.1 on 26.05.2001. He did not follow up the treatment. Had wrong medicines consumed by the patient then his health would have deteriorated immediately. The patient has himself reduced dose for 16 days and the medicine which meant for 7 days, was consumed by him on his own for more than 16 days. On deteriorating condition of the patient no doctor was consulted by the complainant.

There is no negligence by the OP, as held in various inquiries. Sh.Raghubir Singh and husband of the complainant were discharged on the same date. Both of them were suffering from TB and were put up on anti TB treatment. Husband of the complainant consequently died due to improper use of medicines, complainant is using discharge slip of another patient Sh.Raghubir Singh to get financial gains or to blackmail the opposite parties. There is no deficiency or negligence on the part of the Ops and the complaint deserves dismissal.

4. Both the parties adduced their respective evidence by way of affidavits and documents and stood heard through their respective counsels. We have also gone through the record carefully.

5. Outrightly, before submission of arguments it was pointed on behalf of opposite parties that they had taken Preliminary objections qua limitation; Complainant not falling within the definition of the consumer and on the point of limitation, the matter was postponed by the Fora to be decided at the time of final arguments. On behalf of the complainant both submissions were opposed and contended that the complaint is within limitation and husband of the complainant was a consumer of the opposite parties so, is entitled to file the present complaint.

Before we venture to look into the merits of the complaint, would be deciding the preliminary objections, as raised by the opposite parties.

6. First of all whether the husband of the complainant can be considered consumer under the OP. It was argued on behalf of Ops that only wife of the complainant was industrial worker and consequently she alone alongwith her dependents was entitled for free treatment under ESIC card from OP-hospital. Husband of the complainant who was a tailor was not dependent on her, therefore was not entitled for free treatment from the OP-hospital.

7. But the fact remains that the husband of the complainant got admitted in the hospital of OP and obtained treatment therein. It is not in dispute that complainant being industrial worker, was contributing to ESIC funds. She was issued I-Card Ex.CW1/1-2. This card empowered her dependents to obtain medical treatment from ESI hospital.

Though no charges are levied for the treatment of card holder or their family members in the hospital. But despite this fact such person cannot be equated with obtaining free service without consideration from ESI hospital. Because a worker contributes out of her/his wages certain amount of cash to avail such service from the hospital. Thus this contribution by the worker will take him out of receiving free service without consideration. Consideration in such case would be contribution by the worker towards ESI funds. Hence family members would fall within the definition of consumer, contained under section 2 (1) (d) of the Consumer Protection Act, 1986.

8. It is pointed by the opposite parties that in declaration form Ex.R2 and Ex.R3 complainant had not mentioned her husband to be dependent while filling the particulars of the family. No doubt in both these declarations given to ESIC Corporation, name of husband of the complainant as family member is not recorded. But the complainant is recorded w/o Ashwani Kumar, who happened to be her husband. But in Ex.R1 which is Identity card issued to the complainant by ESCI Corporation name of the husband of the complainant as family member is incorporated.

There after it appears that husband of the complainant was taken and considered by OP.1 to be dependent of his wife and consequently admitted him for treatment in the hospital. Even if we take for the sake of arguments that the husband of the complainant was not entitled to be treated in ESI hospital, still due to his treatment, would fall within the definition of the Consumer. Therefore for such reasons, we are of the view that husband of the complainant would be a consumer and she is entitled to file this complaint. Hence it is concluded that husband of the complainant was a consumer under OP.

9. Now adverting to limitation. No doubt as per admitted facts husband of the complainant died on 26.5.2001 qua such alleged negligence the present complaint was filed on 26.5.2005 after 4 years of the death. We are aware that this Fora is empowered and cognizance of the complaint can be taken within two years from the date of cause of action accruing in favour of the complainant. As such this complaint is beyond the period of two years. But it is pleaded by the complainant that after death of her husband, negligence of opposite parties came to her notice and then she left no stone unturned by taking up the matter with the higher authorities, for her grievances by way of representation to various authorities of the state. Hence matter remained pending with law enforcement agencies, against the state and consequently, Punjab State Human Rights Commission, vide letter Ex.CW1/19 dated 28.3.1995 required her to claim for damages from appropriate forum.

Hence, the complaint is within limitation processed her grouse with higher authorities, who failed to take any action. The complainant has placed on the record copy of complaint Ex.CW1/7 dated 26.07.2001 addressed to DGP, Punjab, its reminder Ex.CW1/10 dated 23.08.2003 issued to the DGP, Punjab, Chandigarh she also took up the matter with Human Right Commission, but failed to obtain any response. She also took up the matter with Health authorities of the State, but got no relief.

10- In view of such aspects, we are of the opinion that time spent by the complainant in pursuing her allegations before law enforcing agencies, deserves to be set off against the period of limitation prescribed in Consumer Protection Act. Complainant in good faith, had been pursuing her remedy before administrative agencies of the State. It was consequent to letter dated 28.3.2005 of the Hon’ble Punjab State Human Rights Commission, that complainant filed this complaint. Cause of action can be taken to have accrued to her from receipt of such letter. So, we hold and conclude that for these reasons, complaint is within limitation.

11- The main and basic negligence attributed by the complainant to opposite parties, is handing over discharge card of some other patient, instead of own card of Sh. Ashwani Kumar husband of the complainant, by the opposite parties. Committing of such mistake by any official of the opposite party, is refuted. Ex.CW1/6 is claimed by the complainant to be discharge card, given to her husband at the time of his discharge from the hospital on 10.5.2001.

She claimed herself being illiterate and her husband also illiterate, could not detect error committed by opposite party, who instead of handing over discharge card of her husband Sh. Ashwani Kumar, handed him over discharge card of Sh. Raghubir Singh bearing no.8661101. Incidentally, husband of the complainant bearing no.560320 was also discharged on the same day on 10.5.2001. Discharge card so issued by opposite party in favour of Sh. Ashwani Kumar, is Ex.R10 which has come from the custody of opposite party. Opposite party have also placed copy of the discharge card of Sh. Raghubir Singh (Ex.R11).

12- Ex.CW1/6 has come from custody of the complainant and we have no reason to disbelieve averments of the complainant, supported by her affidavit that it was this card (Ex.CW1/6), which was handed over to her husband at the time of discharge and on the basis thereof, obtained medicines from opposite party hospital as well as purchased from the market. On account of taking wrong medicines, his condition worsened, resulting in his death.

Notwithstanding denial of such error by opposite party through affidavit Ex.RW1/A of Dr. Jatinder Kaur, M.S. of opposite party hospital, Ex.RA1 of Smt. Amarjit Kaur, Staff Nurse of the opposite party hospital, we have no reason to discard or disbelieve version of the complainant and supported by her own affidavit Ex.CW1/A. Because qua such negligence or error, she left no stone unturned and qua it, made complaint to the D.G.P., Punjab, vide application Ex.CW1/7 dated 26.7.2001, issued reminders Ex.CW1/8 dated 11.4.2002, Ex.CW1/10 dated 23.8.2003 and took up matter with Punjab State Human Rights Commission, who vide order dated 28.3.2005, as apparent from its proceedings Ex.CW1/9, ordered her to initiate legal action for damages before appropriate forum. Not only this, she had also approached the State Govt., who had got her complaint enquired through expert doctors.

Therefore, in these circumstances, it is manifest that complainant qua such negligence, levelled allegations from the very beginning. So, it means there was truth and substance therein and since 2001 till today, is pursuing her case. Therefore, we believe claim of the complainant that her husband wrongly was delivered discharge card Ex.CW1/6, pertaining to another patient named Sh. Raghubir Singh and his own discharge card (Ex.R10), was not given to him.

13- Therefore, to be seen whether due to such error or negligence on part of opposite party, health of husband of the complainant, deteriorated due to taking of wrong medicines. This has to be born in mind that husband of the complainant, as per her allegations, was suffering from TB as well as Asthma, meaning thereby he ought to have been prescribed medicines for treatment of TB and Asthma. Whereas, Raghubir Singh was only suffering from TB, who could have been prescribed medicines for treatment of TB.

Therefore, qua such ailment of TB in case of husband of the complainant as well as Sh. Raghubir Singh, treatment or medicines would have been the same and not different from each other. Only conclusion therefore is that on account of such negligence, husband of complainant was deprived from taking medicines meant to treat his Asthma. Because Sh. Raghubir Singh was not suffering from Asthma with which husband of the complainant was suffering in addition to TB. TB was common disease for both of them.

It is case that wrong medicines were administered to husband of the complainant on account of receipt of wrong discharge charge. Within 17 days of discharge from the hospital, husband of the complainant, died on 26.5.2001. The medical superintendent of opposite party hospital in his report dated 30.5.2003 to the Secretary, Punjab State Human Rights Commission, had clearly after inquiry, reported that medicines prescribed to husband of the complainant, meant for 7 days, which he took for 16 days, either by taking reduced dozes or taking irregularly the medicines. This report which has come on the record, goes to show that husband of the complainant took medicines during 16 days, which were meant for 7 days only. Those medicines were for treatment of TB, even if taken on the prescription meant for Sh. Raghubir Singh and not for him.

Such taking of reduced medicines might have deteriorated condition of husband of the complainant, leading to his unfortunate death. We have no material on the record, to conclude that death of Sh. Ashwani Kumar was attributable due to non taking of Asthma medicines, or it was on account of taking wrong medicines or lesser dozes of medicines meant to cure a TB patient. Therefore, such death of Sh. Ashwani Kumar can be attributed, having any nexus with issuance of wrong discharge card to him at the time of discharge from the hospital.

14- But the fact still remains that error or negligence stood committed by employees of ESI Hospital, by handing over discharge card of some other patient and not meant for Sh. Ashwani Kumar. Incidentally, on the same day, Sh. Ashwani Kumar as well as Sh. Raghubir Singh both of whom were suffering from TB, were discharged. But the staff on duty, erred in handing over discharge card of Sh. Raghubir Singh to Sh. Ashwani Kumar. Such error or negligence does not appear to be deliberate, but actually a negligent act. This negligence on their part, has caused agony, suffering to the complainant.

As she in her mind, has taken that her life partner got snatched by the cruel hands of destiny, on account of delivery of discharge card of somebody else, resulting in taking of wrong medicines. Such is conception on part of the complainant. But still she is a sufferer, due to such negligence, which might not have attributed, causing death of her husband. But we can not rule out possibility that on account of negligence of handing over discharge card of Sh. Raghubir Singh to husband of the complainant, he was deprived of taking medicines to cure his Asthma. Though, there is no direct evidence. But in circumstances of the case, we may to some extent, take such view and would be justified to do so.

15- Therefore, for such negligent act on part of staff of opposite party hospital, who handed over discharge card of Sh. Raghubir Singh to husband of the complainant, instead of his own discharge card, would amount to deficiency in service, causing harassment, agony and sufferance to the complainant. Therefore, for such act on their part, we allow the complaint, and order opposite parties, to pay compensation of Rs.1,00,000/-(Rupees One Lac only) to the complainant, with litigation costs of Rs.5000/-. Order be complied within 45 days of receipt of copy of order