1.      The present Revision Petition has been filed by the Petitioner under Section ­­­21(b) of the Consumer Protection Act, 2019 (the “Act”) against impugned order dated 20.12.2018, passed by the State Consumer Disputes Redressal Commission, Kerala (‘for short ‘State Commission’) in First Appeal No. 313 of 2014. In this appeal, the Petitioners/OPs appeal was partly allowed and was disposed of with modification by reducing compensation on account of mental agony amount to Rs.3,00,000/- instead of Rs.5,00,000/-, thereby affirming the Order dated 31.12.2013, passed by the District Consumer Disputes Redressal, Ernakulam (For short “District Forum”) in Consumer Complaint No. 306 of 2008, wherein the Complaint filed by the Complainant was allowed.

2.      For the sake of convenience, the parties in the present matter are denoted as per their positions in the Consumer Complaint before the District Forum. Sabymol C.M. Alias Sabymol Nazeer is identified as the Complainant. Meanwhile, Dr. Joy's Hospital for Women & Children is identified as OP-1 and Dr. Annie Joy, Gynecologist is identified as OP-2 doctor in the present matter.

3.      Brief facts, as per the Complainant, are that he was admitted to OP-1 hospital for delivery of her second child on 16.04.2007, under the care of OP-2, Dr. Annie Joy, Gynaecologist. The following day, despite reporting normal labour pain to OP-2, she was administered intravenous tocolytic medication without physical examination. This caused the labour pain to disappear. Subsequently, the Complainant was informed by OP-2 that she would need to undergo a caesarean section on 20.04.2007. On the scheduled day, she was taken to the operation theatre (OT), and the child was delivered by surgery. Post surgery, the Complainant complained of severe pain, and despite being sedated, she continued to experience discomfort. The next morning, she experienced severe breathing difficulties and abdominal swelling, leading to her transfer to the ICU. Medical staff identified blood in her lungs, requiring its removal and supplementary blood transfusions. Artificial ventilation was initiated using a manual ventilator. In a critical state, the Complainant's condition prompted discussions between OP-1 and OP-2 about the necessity of reopening her. However, due to the lack of confidence and unwillingness to take risks by OP-2, this was not performed. Fortunately, a relative of the Complainant, Dr. Anil Ibrahim, arranged for an ambulance equipped with full life support facilities and critical care services from Lakeshore Hospital, Maradu.

4.      As a result, the Complainant was transferred to Lakeshore Hospital, where she underwent a hysterectomy, leading to the removal of her uterus, and measures were taken to control further bleeding. She required inpatient treatment from 21.04.2007 to 16.05.2007. The Complainant alleges that the tear in the right broad ligament extending up to the pelvic wall occurred due to gross negligence and improper handling by OP-2 during the caesarean section performed on 20.04.2007. The complications resulting from the negligence of the opposite parties have led to the Complainant suffering from serious physical ailments, including partial damage to various organs, including kidneys. In response to these grievances, the Complainant filed Consumer Complaint No. 306 of 2008 before the District Forum, seeking total compensation of Rs. 19,52,930/- along with litigation costs.Top of Form  

5.      In reply, the Opposite Parties (OPs) contended that OP-2 holds the esteemed position of Chief Gynaecologist, Laparoscopist, and infertility specialist at the hospital for the past 23 years. Due to wide experience and proficiency, OP-2 is renowned for managing complex cases in obstetrics, gynaecology, and infertility. The Complainant initially sought consultation from OP-2 on 27.07.2006, presenting with infertility concerns and a medical history comprising two spontaneous abortions and one full-term delivery. Her third pregnancy was complicated, requiring Cerclage wiring to prevent abortion due to medical issues viz. hypothyroidism, diabetes mellitus and obesity. After thorough examination, a diagnosis of secondary infertility was made. Subsequent tests confirmed pregnancy, and throughout, she received regular monitoring and appropriate medical interventions for her various conditions. Despite the high-risk nature of the pregnancy, diligent care by the OPs enabled the successful progression of the pregnancy to 36 weeks. However, on 16.04.2007, during a routine examination, the patient exhibited signs of pre-eclampsia, prompting admission for delivery. A repeat ultrasound revealed placental maturity and an estimated baby weight of 4177 gm. Given the patient's medical history and current conditions, including prior foetal losses and obesity, a decision was made to perform a caesarean section, which was carried out on 20.04.2007 without complications. Following surgery, the patient experienced breathing difficulties the next day, leading to prompt intervention by medical team, including fluid administration and blood transfusion. Decision for re-exploration was made due to the patient's deteriorating condition. Thereafter, her husband and another relative who was a doctor were called into the OT. They were asked for consent to surgery. At about 7.50 AM the relatives informed us that they wanted to shift her to Lakeshore hospital, and they were waiting for the surgical ICU beds to become vacant. The first bottle of blood started at 8 AM. The patient was maintained under general anesthesia and all vital signs were stable. The second bottle of blood started at 9 AM. By 9.15 AM the ambulance team and anesthesiologist from Lakeshore hospital reached the OP-1 hospital and by 10 AM she was shifted out. The OPs further contended that postpartum haemorrhage, a recognized complication of caesarean sections, was managed in accordance with standard medical protocols and guidelines as stated in Williams Obstetrics, 21st Edition. Therefore, they asserted that the treatment provided was appropriate and within standard medical practice, and any resulting complications cannot be attributed to negligence on their part. Consequently, they contended that the Complainant's claims lack merit and should be dismissed.

6.      The District Forum in its Order dated 31.12.2013, partly allowed the complaint and held negligent the OPs with the following order:

“22. Due to the negligence on the part of the opposite parties, the complainant had to undergo several tests and another major surgical procedure to repair the damage caused to her broad ligament caused during a reasonably common surgery ie., caesarean. Apart from that she has suffered pain and agony while undergoing the treatment and the surgeries. Further, the complainant had to expend Rs. 2,33,859.69 evident from Exts. A5 and A7 towards her treatment expenses at Lakeshore Hospital, Ernakulam and Rs. 5,000/- at the 1^st opposite party hospital evidenced by Ext. A.4. "In Halsbury's Laws of England, 4th Edn., Vol. 12 regarding non-pecuniary loss: the pattern - Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus, there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award." Taking into account of the entire facts and circumstances of the complaint and evidence on record, we are of the view that the complainant is entitled to get the following amount towards compensation from the opposite parties, which we think is enough to abate the agony of the complainant.

1. The expenditure incurred               Rs. 5,000

by the claimant at the

2. The hospital and treatment

expenses made by the

complainant at Lakeshore

hospital, Ernakulam.                            Rs. 2,33,859.69

3. Pain and suffering,

 inconveniences and

 mental agony                                                 Rs. 5,00,000

                                                      ----------------------

Total                                                        Rs. 7,38,859.69

                                                    - - - - - - - - - - - - -

23. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay Rs. 7,38,859.59 (Rupees Seven lakhs thirty eight thousand eight hundred fifty nine and sixty nine paisa only) to the complainant for the reasons stated above.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till realisation.

7.      Being aggrieved by the order of the District Forum, the OPs/ Appellants filed Appeal No. 313 of 2014 before the State Commission. The State Commission vide order dated 20.12.2018 also found negligent the OPs and partly allowed the appeal with the following modification in the Order passed by the District Forum: -

“14. In the light of the dictum laid down in the above cited decision and considering the evidence, facts and circumstances it can be concluded that there is medical negligence on the part of the 2^nd opposite party in imparting proper treatment and care to the complainant. So, though for different reasons, the finding of the district forum that there was medical negligence and deficiency in service on the part of the 2^nd opposite party is to be upheld. As found by the district forum, the opposite party is vicariously liable for the acts of the 2^nd opposite party in the capacity of her employer and so the opposite parties are jointly and severally answerable for the deficiency in service and negligence in imparting medical treatment to the complainant. The district forum has directed the opposite parties to pay Rs. 7,38,859.69 as compensation to the complainant with interest @ 12% per annum from the date of order till realization. The district forum has arrived on that amount by considering the hospital and treatment expenses incurred by complainant and by awarding Rs. 5,00,000/- towards pain, suffering, inconvenience and mental agony caused to the complainant. Considering the facts and circumstance of the case we consider that the compensation of Rs.5,00,000/- ordered by the district forum towards pain, suffering, inconvenience and mental agony caused to the complainant is on the higher side and it has to be reduced to Rs.3,00,000/-. Complainant is entitled lo get interest @ 8% per annum for the amount of compensation ordered from 31.1 2.2013 till realization. Order passed by the district forum is to be modified to that effect.

In the result, appeal is partly allowed. The Order passed by the district forum is modified as follows: Opposite parties 1 & 2 shall jointly and severally, pay Rs.5,38,859.69 with interest @ 8% per annum from 31.12.2013 till realization to the complainant. Parties are directed to suffer their respective costs.

8.      Being dissatisfied by the Impugned Order dated 20.12.2018 passed by the State Commission, the Petitioners/OPs filed the instant Revision Petition No. 860 of 2019.

9.      In his arguments, the learned Counsel for the Petitioners/OPs reiterated the facts and contentions presented in the reply and emphasized that the OPs exercised all reasonable care and caution in the patient's treatment. The treatment provided adhered to the standard protocols and procedures accepted by the contemporary medical profession. Despite the complication arising, timely detection and appropriate corrective measures were implemented, with the OPs even suggesting exploratory surgery to identify the cause, which was declined by the patient's relative. He contended that the patient's relative's delay in decision-making and awaiting the arrival of an ambulance to Lakeshore Hospital wasted crucial time, potentially affecting the outcome. Postpartum hysterectomy, considered a standard life-saving procedure in similar scenarios, was deemed necessary to address the complication. Notably, there was no external bleeding observed, and the decision to proceed with exploratory surgery was rationalized by the need to investigate further. He further argued that if unforeseen developments occur during a procedure or treatment that is unrelated to the undertaken surgery, the doctor cannot be held liable for negligence. He cited the precedent established by the Hon’ble Supreme Court in the case of Kusum Sharma & Ors vs. Batra Hospital & Medical Research Centre, (2010) 3 SCC 480, to support this argument. He, therefore, asserted that the Complainant lacks grounds to allege negligence or deficiency in service on the part of OP-2 in conducting the caesarean section or in the subsequent care provided to the patient.

10.    The learned Counsel for the Complainant reiterated the facts outlined in the complaint and strongly argued that the tear in the right broad ligament extending up to the pelvic wall occurred due to gross negligence and improper handling by OP-2 during the Caesarean section performed on the Respondent on 20.04.2007. It was asserted that had OP-2 exercised sufficient care and caution during the procedure, such damage would not have occasioned. He contended that the negligence of OP-2 is solely responsible for the tear and subsequent complications. It was further argued that had OP-2 followed necessary procedures and ensured proper preparation and cleaning prior to concluding the surgery and stitching the patient, the tear in the right broad ligament extending up to the pelvic wall could have been detected and rectified promptly, preventing her condition to deteriorate to such a critical stage, possibly to the brink of death. Therefore, there is no error in the order of the State Commission. He sought for the dismissal of the Revision Petition with costs.

11.    I have examined the pleadings, associated documents, orders of both the learned fora and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.

12.    Per contra both the Fora below have upheld the finding that there was medical negligence on the part of OP-2 in providing adequate treatment and care to the Complainant. Additionally, OP-1 is vicariously liable for the actions of OP-2 in their capacity as her employer, thereby rendering OPs jointly and severally liable. In the instant case, it is evident that the OP-2 failed in her duty of care for proper treatment to the Complainant. The Hon’ble Supreme Court elaborated what constitutes medical negligence in case of failure of duty. In the case of Dr. Laxman Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr. AIR 1969 SC 128, it was held that:

"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding whether treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged. In the light of the particular circumstances of each case is what the law requires. The above principle was again applied by this court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors. (AIR 1989 SC 1570). It observed "A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one."

13.     The concurrent finding of facts is noted from both the fora. It is a well settled position in law that revision under section 58(1)(b) of the Consumer Protection Act, 2019, (which are pari materia to Section 21(b) the Act, 1986) confers very limited jurisdiction on this Commission. In the present case there are concurrent findings of the facts and the revisional jurisdiction of this Commission is limited. I do not find any illegality, material irregularity or jurisdictional error in the impugned Order passed by both the fora warranting our interference in revisional jurisdiction under Section 21(b) of the Act, 1986. I rely on the decision of the Hon'ble Supreme Court in the case of 'Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., (2011) 11 SCC 269. The Hon'ble Supreme Court in 'Sunil Kumar Maity Vs. State Bank of India & Anr. Civil Appeal No. 432 OF 2022 Order dated 21.01.2022, it was held that the revisional Jurisdiction of this Commission is extremely limited by observing as under: -

"9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the Complainant-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

14.    Similarly, in a recent the Hon'ble Supreme Court in Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. (2022) 9 SCC 31, it was held that:-

As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally  or with material irregularity. Thus, the powers of the National Commission are very limited. Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction. In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.

15.    Based on the discussion above, I do not find any merit in the present Revision Petition and the same is Dismissed.  Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.

16.    All other pending Applications, if any, stand disposed of.