CC.No.88/2009

Dated of this 6th day of January 2010

Present:

Sri.K.M.Thammaiah President

Sri.D.Shivamahadevaiah Member

Smt.Girija Lady Member

Between:

Narasimhamurthy s/o. Narasimhaiah,

Aged about 30 years, Resident of Complainant

Malleshapura, Kasaba hobli,

Koratagere taluk

(By Sri.K.C.Nagaraju, Advocate)

AND
1. Dr.Shuba, Chief Medical officer

(Taluk medical officer)

Govt. Hospital, Koratagere Opposite parties

2. Dr.Lavanya, Doctor,

Now working as Govt. General

Hospital, Chelluru, Gubbi taluk,

Tumkur district

(1st OP- by Sri.M.Mallikarjunaiah, Advocate)

(2nd OP- by Sri.R.Prem Kumar, Advocate)


ORDER

This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

2. Through this complaint, the complainant prays for an award and order against the Opposite Parties (hereinafter called as the OPs for short) to award compensation of Rs.10,00,000/- with interest at 12% per annum from the date of complaint till realisation.
3. The facts given rise to institute the complaint may be summarized as thus:

It is his grievance that, his wife Smt. Anu, aged about 20 years was admitted to Government hospital, Koratagere on 2-6-2008 at 6 AM, as she was a pregnant of 9 months and suffering from pregnancy pain. At that time of admission to the said hospital, the duty doctor was Lavanya i.e. 2nd OP. In the first instance, she had refused to attend the case of his wife. However, on the complaint made by the complainant to the taluk medical officer and as per the direction of the said officer, the 2nd OP attended the pregnancy case of his wife. While the 2nd OP was attending the case, the complainant was sitting near the door of the delivery room. He heard the loud cry of his wife from the delivery room, while the 2nd OP was forcing his wife Anu to give birth to a child. After one hour, the complainants wife gave birth to a male child and the door of the delivery room was opened. Then the complainant saw in the delivery room that, his wife was unconscious and there was heavy bleeding by her side. It is alleged that, on account of the force used by the 2nd OP, his wife became unconscious and bleeding. In the nick of the movement, the 2nd OP suddenly arranged the ambulance and directed the complainant to take his wife for higher treatment at Tumkur General Hospital. But before the ambulance could leave the limits of Koratagere town, his wife expired in the ambulance van itself. It is further alleged that, on account of the mishandling of the 2nd OP in forcing his wife to deliver the child the tragedy occurred. Therefore, the ambulance brought the dead body to Govt. hospital, Koratagere, where her post-mortem was done on 2-6-2008 itself.

4. It is further contended that, the death of his wife was due to the negligence act of the OPs for having not taken appropriate action well in time and also due to mishandling of the case of his wife by the 2nd OP and giving rough treatment to her.

5. It is further contended that, if the OPs had suggested the complainant to take his wife to higher hospital for delivery well in time, when they approached the Govt. Hospital, Koratagere, she would not have died. It is alleged that, on account of non-examination of the patient by the OPs in time, she died. Hence, the OPs are solely responsible for the death of complainants wife and guilty of offence.

6. It is further contended that, the complainant gave a complaint to the Koratagere police, who inturn registered a case against the OPs in Cr No.120/2008 under Section 304 (A) R/W. 34 of IPC. But, the police without conducting proper enquiry have submitted B final report in the said case on the file of the civil judge (JD) and JMF, Koratagere.

7. It is further contended that, on 19-6-2009 the complainant got issued a legal notice to the OPs and they gave reply to the same. In the reply, 2nd OP has admitted that, after her one hour effort, the complainants wife Anu gave birth to a male child and the said Anu was unconscious. It is contended that, on account of non-availability of facilities in the hospital, suddenly, she arranged the ambulance and sent the complainants wife for further treatment to Govt. General Hospital, Tumkur. Further, she has also admitted that, before the ambulance could leave the limits of Koratagere, the complainants wife Anu had died in the van and the body was taken back to the Govt. Hospital. In her reply the 2nd OP has also stated that, the deceased Anu was a regular patient of Dr.Shubha who gave regular treatment to her. It clearly goes that, the OPs No.1 and 2 were well aware of the health condition of the complainants wife. Inspite of that, they have not taken appropriate action in the matter. In her reply, the 1st OP has expressed her total ignorance about the treatment given to the complainants wife, which is contrary to the reply of the 2nd OP. Hence, this complaint.

8. The OPs who have been notified of the complaint put in their appearance through their counsel and resisted the same by filing their objections.


9. The gist of the OP objections is as follows:

In the objections filed by the 1st OP, it is contended that, the complaint is not maintainable either in law or on facts. There is no nexus between this OP and the deceased Anu. The other complaint averments are not known and she is not aware of it. This OP while emphatically denying the complaint averment as false and untenable, inter-alia pleaded that, a false complaint is filed by the complainant knowing fully well that, this OP had not treated the patient and she was on CL from 29-5-2008 to 5-6-2008. This OP was admitted to Vijaya Nursing Home on 1-6-2008 as she was suffering from fever and dysentery and she was treated in the said nursing home till 3-6-2008. Hence, there is no negligence on the part of this OP. Under the above circumstances, the complaint as against this OP is liable to be dismissed with exemplary costs.


10. In the objections filed by the 2nd OP, It is pleaded that, the complaint filed by the complainant is not maintainable and sustainable either on law or on facts and the same is liable to be dismissed in limine on the following grounds.

a. Complainant has no locus standi to file the complaint as complainant is not a consumer.

b. That the complaint filed and processed further by the complainant is not in accordance with the prescribed procedure as stipulated in the provisions of CP Act and Rules framed there under. Thus the complaint filed without complying with the mandatory provisions of the Act is liable to be dismissed as not maintainable.

11. It is further submitted that, the complaint averment made in para no.2 is true and the allegations made in para No.3, 4 and 5 are false. This OP while emphatically denying the complaint averment as false and untenable, inter-alia pleaded that, this is a case acted upon by this OP who is duly supported by other available staff, in good faith and for the benefit of the complainants wife and new born child. It is further submitted that, the complaint filed by the complainant is devoid of merits. The conditions to claim one to be a consumer must mandatorily satisfy the conditions stipulated as per Sect.2 (1) (o) of the Act. In this complaint, it is an admitted fact by the complainant that, his wife has been admitted to Government hospital, Koratagere wherein no charge whatsoever was paid for having availed the service. It was a free service that has been provided by the government hospital, Koratagere. So, the service rendered by the OPs was not for payment of fees or consideration. When that is so, the complainant has no locus standi to file a consumer complaint for the deficiency of service on the part of this OP.

12. It is further submitted that, there was no negligence on the part of this OP in providing the necessary treatment to the complainants wife, as this OP had taken all reasonable care and caution required for conducting the requisite treatment. That the act of this OP was being done in the interest of the complainants wife in emergency, in view of the condition and circumstances, her decision to provide or render treatment cannot be considered as deficiency in service or negligence. That the allegation revealed by the complainant is completely baseless and an uncalled for accusation.

13. It is further submitted that, the matter was referred for conducting postmortem of the deceased and accordingly the concerned government hospital doctor submitted the report dated 23-8-2008 clearly giving a finding that the body does not appear to bear any evidence about negligence of duty of the medical officer or staff. In furtherance, the complainant has himself given his statement before the Koratagere police on 15-8-2008 in complaint No.120/2008 and the extract of statement is as follows; س ԤФ 9 пҁЦї ѧӧї ї Ё Ԗ й ӯі Цѷ гї ї ԑ֧ Фٷԑց Ӗі سлЫԳف : ڷ Գ ˽񁸁Ф Цշ йи سлЫո

14. It is further submitted that, this complaint has been got filed by the complainant after a period of 14 months with some negative motive and instigation. Thus it is submitted that the said postmortem report and statement by the complainant himself show that, there has been no negligence on the part of this OP.


15. It is further submitted that, professionals like doctors has to take instantaneously certain decisions considering the prevailing situation and circumstances and the choice of one reasonable course of treatment to other or prescribing new course of treatment as known method was available cannot be held negligent. It is further submitted that, this OP faced with an emergency has tried her best to redeem the patient out of suffering. There is a well settled saying that even the best professionals sometimes have failures just like a lawyer cannot win every case in his professional career and for that professionals cannot be penalized. Thus the complainant by getting this complaint filed after 14 months is abusing the process of this Forum adopting the blackmailing tactics unjust enrichment eventhough the complainant has no locus standi.

16. It is further submitted that, the complainant has got filed this frivolous and vexatious allegations based on apprehension-conjectures and surmises which cannot be relied upon and hence this complaint is liable to be dismissed by imposing exemplary cost. Accordingly, she prays for dismissal of the complaint with exemplary costs.

17. In support of the cases of the parties, the complainant and OPs have filed their affidavits. The documents produced by the complainant and OPs came to be marked as Ex.C-1 to 5 and Ex.R-1 to 5. We have heard the learned counsel appearing for the parties. We have also examined the materials available on record.

18. The questions that arise for our considerations are:

1. Is not the complainant a consumer within the meaning of the Act?

2. Is there any deficiency of service by the OPs?

3. Is the complainant entitled for the relief as prayed for?

19. Our findings on the above questions are here under:

Point Nos.1 to 2: Negative

Point No.3: As per order

REASONS

20. The learned counsel appearing for the OPs has assailed the complaint on two folds. Firstly, it is contended that, the complainant is not a consumer as free service was rendered to the deceased. Secondly, it is contended that, there was no medical negligence on the part of the OPs. As against, it is contended by the learned counsel appearing for the complainant that, the case on hand does fall within the ambit of the Act and therefore it is sustainable. As such, we shall examine the contentions of the parties.

21. It is the contention of the OPs that, since alleged treatment was given free of cost, the complainant does not fall within the purview of the consumer. This argument does not hold any water in the light of dictum of Supreme Court reported in AIR 1996 SC at page 551, wherein it is held;

(L) Consumer Protection Act (68 of 1986) S.3 (1) (o)- Service-Doctor/Hospital Rendering free of charge services to some patient and services on payment to other Both types of services rendered fall within ambit of service under S.2 (1) (o)

Therefore we find no merits in that contention raised by the OPs.

22. Point No.2: It is the contention of the complainant that, on account of alleged negligence in mishandling the patient while attending to the delivery case of the deceased, the patient by name Anu had become a victim. It is also contended that, thereafter a criminal case was registered against the OPs. It is pertinent to note that, on the unfortunate day of death of the victim, the 1st OP was on leave (Casual Leave) and she never attended to the patient. The attendance registered produced by the OPs at Ex-R-3 and 4 establish this fact. According to the complainant, he got admitted his wife Anu on 2-6-2008. The attendance register extract produced at Ex-R-3 and 4 clearly spells out the fact that, the 1st OP Dr.Shuba was on leave from 29-5-2008 to 5-6-2008. Therefore, under no stretch of imagination, it can be said that, OP No.1 had attended the patient and she is also guilty of alleged medical negligence. Therefore, the complaint against 1st OP is not sustainable and it is liable to be rejected.

23. Now coming to the case of the 2nd OP, it clear that, she is a qualified doctor serving in the Government General Hospital, Koratagere. The contention of the complainant that, the 2nd OP had refused to attend the case of his wife on the ground that, she had worked throughout the night has not seen the light of the day. Absolutely, there is no proof or material to show that, the 2nd OP was on night duty on the day prior to the admission of the patient. It is also the contention of the complainant that, as per the direction giving by the Taluk Medical Officer, the 2nd OP has attended the case of the pregnant lady called Anu. But, unfortunately no proof is placed before this forum by the complainant to show that, the 2nd OP had refused to attend to her duties and thereafter on a complaint was given to Taluk Medical Officer, he directed the 2nd OP to attend to the patient.

24. Now coming to alleged medical negligence, it is suffice to say that, there is no clinching or acceptable evidence. From the criminal case records produced at Ex-C-5, postmortem report; from the B-report submitted by the investigating officer and its acceptance by the concerned court clearly demonstrate that, there was no medical negligence on the part of the doctor who attended to the unfortunate victim Aun.

25. It is also pertinent that, under Ex-R-1, Dr.P.A.Suresh of Koratagere Taluk had given his report to the police inspector as here under:
To, 23/8/08

Police Inspector,

Koratagere Police Station,

Koratagere

Respected sir,

Subject: Postmortem report explanation

Reference: PM report of deceased Anu w/o.

Narasimhamurthy, Malleshapura
As per my postmortem findings and the observation, I believe that, the dead body not appears to bear any evidence about negligence of duty of the medical officer or staff attending the delivery. Death of the Anu is due to blood loss on already anemic state. It is not due to any negligence of the staff and medical officer.

Thanking you,

Sd/-

26. Likewise, she has produced the copy of the statement given by the complainant at Ex-R-2 indicating that, there was no medical negligence. As against this evidence, the complainant has not produced any acceptable or cogent evidence to prove the medical negligence of the 2nd OP. It is also relevant to note that, in a decision reported in 2009 CTJ 807 (CP) (SCDRC) - State Consumer Disputes Redressal Commission, Maharashtra, Mumbai, has observed thus:

Medical negligence against a doctor has to be proved by expert opinion. Clinching evidence must be adduced to prove that the doctor failed in his duty to take due and proper care and that he/she gave treatment contrary to the established protocol of the concerned stream

27. It is further observed at para No.4 of the judgment as here under:

4. Burden is on the complainant to prove that the opposite party doctor was guilty of medical negligence and medical negligence of the doctor has got to be proved by adducing expert evidence.

28. Likewise, the National Consumer Disputes Redressal Commission, New Delhi, in a decision reported in 2009 (I) CPR 200 (NC) has observed that, the onus of proof to prove medical negligence is on the complainant. Honble Supreme Court in AIR 2009 Supreme Court 2049 has held medical negligence Proof Choice of one reasonable course of treatment to other not negligence

29. It is relevant to note that, disprove the available evidence suggesting no medical negligence, the complainant has not produced any experts opinion or moved the forum to refer the matter to the opinion of the expert. In the absence of such materials, we cannot hold that, the 2nd OP is guilty of medical negligence. Therefore, we hold that, the complaint is devoid of merit and it is liable to be rejected.

30. Being that opinion, we proceed to pass the following:

ORDER

The complaint is dismissed but without costs.
Dictated to the stenographer, typed by him, corrected and pronounced on open forum this 6th day of January 2010.