For the appellant: Ms. Ankita Agarwal, Advocate
For the respondent: None appeared
Date of Hearing & Judgment: 30-08-2018
J U D G M E N T
BY JUSTICE ANIMA HAZARIKA,
This appeal is directed against the judgment and order dated 5-5-2004 passed by the learned District Consumer Disputes Redressal Forum, Dibrugarh (District Forum for short) in C.P. Case No. 7/2003, whereby the District Forum partly allowed the complaint case by granting the following reliefs, which are to be paid by the opposite party Nos. 1 and 2 within a period of one month from the date of judgment. The reliefs granted are quoted hereunder;-
- The complainant is not required to pay Rs. 37,000/- (Thirty seven thousand) only the remaining balance or of the bill.
- To pay an amount of Rs. 25,000/- only to the complainant, being the compensation for harassment and mental agony caused to the complainant.
- To pay Rs. 1000/- only being the cost of the proceedings.
2. Being aggrieved with the aforesaid judgment and order passed by the District Forum, Dibrugarh, the opposite parties have preferred this appeal before this Commission, challenging the legality and validity of the same.
3. The complainant’s case in brief is that the complainant is an inhabitant of Dibrugarh town. On 13-5-2002 at about 4.30 P.M. his son Sri Promod Kumar Sharma, aged about 25 years, met with a Motor Cycle accident with an other vehicle at A.T. Road near Laluka Gaon under Dibrugarh Town and sustained severe head injuries. He was taken to G.M. Hospital at about 5.30 P.M. and was admitted in the said hospital. He was examined and treated by Prof. Nagesh of G.M. Hospital. Upon going through various examination and tests, the complainant was advised to take his son outside Assam for his proper treatment and quick recovery as there was no facility for treatment of head injuries in the said Hospital. The victim Promod Kr. Sharma was in the state of coma since the time of accident. Thus, as per advice of Dr. Nagesh, the complainant decided to take his son to Vellore for his treatment. But before going to Vellore, the complainant went to opposite party No. 2 on 14-5-2002 at about 1.00 P.M. and showed him the discharge certificate issued by G.M. Hospital and narrated about the accident and opinion rendered by Dr. Nagesh about his son and on assurance of the opposite party No. 2 (OP for short), the complainant admitted his son at opposite party No. 2, wherein his son was kept in ICU on 14-5-2002 under the care and supervision of opposite party Nos. 2 and 3. On the same day at about 6 P.M., the injured Promod Kr. Sharma went under a major surgical operation for head injuries by opposite party No. 3. The complainant supplied necessary medicines and blood as per direction of the opposite party Nos. 2 and 3 in the Nursing Home during the period of operation.
4. Further case of the complainant is that his son was kept in ICU without proper care and treatment for which after ten days of operation, the Bed Sore started to develop upon the Dorsal side of the patient. The Bed Sore started due to maladministration of anaesthesia in the state of coma of the patient at the time of surgical operation and due to negligence, irregular attendance and careless treatment of opposite party Nos. 1,2 and 3 and also for the fact that the patient was lying one sided in the same position for a long period without proper care. Due to the same reason his hands and legs ceased to functioning. It is well known fact that a patient admitted in ICU should not be allowed to be affected by any other troubles or diseases other than for which he is admitted in ICU which needs proper and intensive care and adequate arrangement to prevent the occurrence of any untowards happenings which may cause new problems to the patient as the charges are very high in ICU. Due to failure of the opposite party Nos. 1,2 and 3 to take proper care and adequate treatment while in ICU, causing Bed Sore to the patient, even affected the vertebrae of the patient. While the matter was brought to the notice of the opposite party Nos. 2 and 3, nothing was done by them in this regard and as a result, Bed Sore spread upon various parts of the doarsal side of the patient.
5. The patient had to be admitted in ICU, ITU and ICCU in the said Hospital for a period of 103 days with high rate of charges without proper care and treatment with a view to realize heavy and excessive amount for their personal gain. As the patient could not open his mouth even after 15 days of admission, the Nurses of the said Hospital on duty, broke two teeth of the patient while washing the month forcibly by spoon negligently and carelessly. The complainant also alleged that most of the Nursing Staff were not trained. The matter was then and there reported to the opposite party Nos. 2 and 3 who told that new teeth will come out in due course. The patient’s voice was also completely suppressed for keeping him for a long period of 103 days in the ICU. Even when the complainant wanted to take his son to Vellore for better treatment and recovery, upon best assurance of the opposite party Nos. 2 and 3 to get his son cured within a very short period, the complainant admitted his son in the said Hospital, but instead of recovery of the patient his condition became worse due to negligence and improper treatment of opposite party No. 2.
6. As the patient was not recovering at all, the complainant requested the opposite party Nos. 2 and 3 to release his son from the Hospital, but they assured him not to hurry as it will take some time for recovery, but nothing happened as per their assurance and only for realizing huge amount, his son was kept in ICU for 103 days. In this way, two months had already passed and after the end of 70 days of his admission, they started Physiotherapy and bill of Rs. 4000/- was charged being the amount of Physiotherapy and bed charge but in fact, no Physiotherapy was done as the said Hospital was not equipped with extra room and facility for Physiotherapy . The Physiotherapy was conducted by Dr. Indra Baruah as alleged, but the complainant was never informed about the same. Even when there was no need to Plastic Surgery, the opposite party Nos. 2 and 3 had charged Rs. 4000/- being the amount of Plastic Surgery and consultation fee without the knowledge and consent of the complainant which was done with a view to obtain monetary gain only. In this way, the complainant was charged Rs. 20,000/- being the amount of Neuro Surgeon fee and Rs. 26,600/- being the amount of Neuro Surgeon consultation fee, although the specialist in Neuro Surgery was never consulted in the Hospital from outside till 25-8-2002.
7. It has also been alleged that due to the aforesaid negligent act of the opposite party Nos. 1,2 and 3, the condition of the patient both physically and mentally deteriorated day by day in the said Hospital and the patient was discharged on 26-8-2002 without any recovery. However, an amount of Rs. 2,42,580/- was charged as medical bill, which was too excessive and beyond expectation. The complainant was at a loss after receiving the medical bill and thus he raised objection against the bill. However, after securing loan from here and there, he paid Rs. 1,70,000/- against the bill and issued a cheque for the remaining balance amount of Rs. 57,580/-. By this way, he had to spent Rs. 3,60,000/-including the cost of medicine and medical expenditure as charged by the opposite party Nos. 1,2 and 3, but the condition of the patient remained same and there was no recovery at all as assured by the opposite party Nos. 2 and 3. Upon their assurance only, the complainant could not take his son to Vellore for better treatment. As a result, the complainant had to suffer a loss of Rs. 4,60,000/- only due to negligence and improper treatment of the opposite party Nos. 2 and 3. Moreover, Nurses were also not competent to execute the instructions delivered to them in the course of the treatment of the patient.
8. The complainant, therefore, being aggrieved with the attitude of the opposite party Nos. 1, 2 and 3, served a notice to the opposite party No. 2 stating therein his grievances and loss of damage caused to him due to negligence and improper treatment rendered to his son as well as the excessive bill dated 26-8-2002. Despite receipt of the notice, the opposite party No. 2 did not take any action. The complainant was also aggrieved for the fact that after 90 days of hospitalization, when the Bed Sore affected several parts of the dorsal side of the patient, Dr. U . Goswamit visited to check up the patient and started dressing of the Bed Sore. The opposite party Nos. 2 and 3 failed to take proper care of the Bed Sore and did not provide regular dressing due to which it spread several parts of dorsal side of the patient. The complainant thus had suffered mentally and physically as well as monetarily due to negligent act, carelessness and improper treatment of his son by the opposite party Nos. 2 and 3 and payment of Rs. 4,60,000/- (approximately) to the opposite parties for treatment of his son.
9. Thus, alleging dereliction of duty, improper treatment and negligence on the part of the Opposite Party Nos. 1,2 and 3, as well as the loss and injury, harassment, mental agony, loss of precious time and money, he filed the complaint case before the District Forum, Dibrugarh which was registered and numbered as C.P. No. 7/2003 praying for granting the following reliefs;-
“(a) Compensation of Rs. 1,00,000/-( Rupees one lakh) being the amount of loss and damages, suffered by the complainant for the treatment of his son due to negligent and improper treatment at the Opposite Party Nos. 1,2 and 3.
(b) Payment of Rs. 1,90,000/- (Rupees one lakh ninety thousand) only being the amount of medical expenditure charged by the opposite party No. 1,2 and 3 which is too excessive.
(c) Payment of Rs. 70,000/- (Rupees seventy thousand) only being amount of cost of medicine supplied to the opposite party for the treatment of the patient without any improvement and recovery.
(d) Payment of Rs. 1,00,000/- (Rupees one lakh) being the amount of compensation for breaking two teeth of the son of the complainant”.
10. Upon receipt of notice from the District Forum, opposite party Nos. 1 and 2
filed written statement jointly denying the allegations made in the complaint case. It has been contended that the complaint petition is not maintainable under Section 13 of the Consumer Protection Act, 1986 (Act 1986 for short) inasmuch as the complainant does not fall within the meaning of consumer as defined under Section 2(1)(d) of the Act. Moreover, the complaint petition was not filed by a proper person i.e. by the patient himself who is an adult person and therefore the complainant has no right to file the complaint case on behalf of his son. Moreover, the opposite parties never asked the complainant to bring his injured son to them and also never given any assurance that they will cure his son. In fact, on 14-5-2002 after getting his injured son discharged from the G.M. Hospital, where he was lying in the state of coma since the time of accident, the complainant voluntarily admitted him at opposite party No. 1 where he was surgically operated on his head by opposite party No. 3. It has been further contended that there was no dereliction of duty on the part of the opposite parties, inasmuch as, the opposite party No. 3 used to visit the injured at least twice a day and even more, if necessary. All patients in ICU are nursed on their sides with two hourly position change. The son of the complainant was provided with air-mattress from 18-5-2002 and due care and attention was given to him and he was charged very reasonably and moderately. More so, the complainant himself has admitted in his complaint petition that the patient was in coma since the time of accident. So his voice could not have been normal before the admission. Once, the patient of the complainant came out of ICU, the complainant was advised to take the patient to the A.M.C. Hospital as by then he basically needed physiotherapy and nursing care, but the relatives of the patient did not follow their advice. Being in this profession for so long and dealing with critical cases everyday, it would not be expected of the opposite party Nos. 2 and 3 to say things like getting his son cured, within a very short period of time. Even considering the seriousness of the case, Dr. Zakir Hussain, Neurosurgeon, Dr. K.V. Mathai, Neurosurgeon and other Neurosurgeons of Delhi and Kolkata were also consulted by giving them updated medical bulletin of the patient. In view of the same the complainant was charged vey moderately and no excess amount was charged. As there was no dereliction of duty, improper treatment and negligence on the part of the opposite parties and the hospital charge was also very nominal, the complainant is not entitle to any relief or reliefs as claimed.
11. The opposite party No. 3 has filed separate written statement denying each and every allegation made in the complaint petition. It has been contended that there was no negligence/carelessness or improper treatment on the part of the opposite parties. It has also been contended that as per record, the patient was admitted in ICU on 14-5-2002 and discharged from ICU on 10-7-2002, totaling 56 days. He personally advised the relatives to take him to Medical College, once the patient is released from ICU as by then he basically needed physiotherapy and nursing care, but the relatives did not do so. It has been further stated that the father of the patient i.e. the complainant was not present during that part of the patient’s illness, as he came to know from newspaper that the complainant was in jail and therefore all the discussions took place with the brothers, sister and brother-in-law of the patient. It has been categorically denied that the opposite party No. 3 had charged excessive fees, inasmuch as, he charged only Rs. 20,000/- for the operation which is standard charge for such a difficult operation. This amount is charged in case of major operation in GM Hospital. Opposite party No. 3 has himself stated that he charged Rs. 300/- per day for ICU visit and Rs. 200/- per day for visit in the wards, which is also a standard charge of all doctors in Dibrugarh. It has also been categorically stated by the opposite party No. 3 that a standard Neurosurgical operation for a head injured patient with two days in the ICU in a private Hospital in Dibrugarh in a paying cabin, would be around Rs. 40,000/- (inclusive of operation fees, anesthesia fee, OT charges, bed and ICU charge, medicines and investigations) and if a patient remains in the Hospital for 103 days (including 56 days in ICU) his bill expected to be high. It has further been stated that on the request of the relatives of the patient, Dr. Zakir Hussain and other Neurosurgeon of Delhi and Kolkata were also consulted by giving them updated medical bulletin of the patient more so Dr. V.K. Mathai, who is a visiting Neurosurgeon in the Aditya Hospital (OP No.1) saw the patient when he visited the hospital on 26-08-2002 and expressed satisfaction with the treatment given to the patient. It is also stated that the patient Mr. Promod Sharma, the son of the complainant, came walking fully conscious and talking on 6-1-2003 in the OPD.
12. The complainant besides himself, filed evidence by way of affidavit of one Shri Vijay Sharma, while the opposite party Nos. 1 and 2 prayed that the written statement be treated as affidavit.
13. Upon consideration of the pleading of the parties, the following issues were framed by the learned District Forum.
“(1). Whether there is medical negligence on the part of the opposite parties in providing medical treatment to the injured son of the complainant ?
(2). Whether the opposite parties had resorted to unfair trade practice in charging of Rs. 2,42,580/- on the treatment of the patient ?
(3). Whether there is dereliction of duty, improper treatment, amounting to deficiency of services on the part of the opposite parties ?
(4). Whether the complainant is entitled to get the reliefs prayed ?”
14. The learned District Forum, in respect of issue No. 1 pertaining to medical negligence, decided the issue against the complainant. However, with regard to Issue Nos. 2 and 3, the District Forum came to the conclusion that the opposite party Nos. 1 and 2 had resorted to unfair trade practice in extracting excessive amount from the complainant taking advantage of the condition of his injured son and as such, came to the conclusion that there was deficiency of service on the part of the opposite party Nos. 1 and 2 and therefore both the issues were decided in affirmative. Regarding Issue No. 4, it was held that in view of the findings and decision arrived at Issue Nos. 2 and 3, the complainant is entitled to get the relief as claimed for and thus awarded the relief which is already quoted hereinabove.
15. Thus, being aggrieved by the judgment and order dated 5-5-2004 passed by the learned District Forum, Dibrugarh, in C.P. Case No. 7/2003, the opposite party has preferred this appeal before this Commission, challenging the legality and validity of the same.
16. In the instant appeal, since 28-1-2014, none has appeared on behalf of the respondent till date. This Commission therefore, after granting several adjournments for the ends of justice, had to pass order for ex-parte hearing against the respondent and decided to dispose of the appeal after hearing the learned counsel appearing for the appellant.
17. Accordingly, we have heard Ms. Agarwal, learned counsel, appearing for the appellant, perused the records of the case, including the impugned judgment and order under challenge, also the written argument filed on behalf of the appellant. None appeared for the respondent nor filed any written argument.
18. Ms. Agarwal, learned counsel, appearing for the appellant has submitted that the instant case as projected by the complainant, does not come within the meaning of unfair trade practice as defined in the Consumer Protection Act, 1986 ( 1986 Act for short). The learned District Forum, therefore, on perverse appreciations of facts arrived at the purported conclusion that the charges mentioned in the bill are excessive and unreasonable and that there has been deficiency of service on the part of the appellants and thus, on this ground alone, the impugned judgment and order is liable to be set-aside and quashed. Ms. Agarwal has further submitted that Section 14(1)(d) of the 1986 Act empowers the District Forum to award an amount as compensation for any loss/injury suffered by the consumer due to negligence of the opposite party, meaning thereby that for mere deficiency of service without there being any negligence associated therewith, compensation can not be awarded and as such, for compensation to be awarded, negligence on the part of the opposite party is an essential pre condition to be established. In the instant case, Issue No. 1 formulated by the District Forum is “ Whether there is medical negligence on the part of the opposite party in providing medical treatment to the injured son of the complainant” having been answered in the negative, meaning thereby that no negligence can be attributed on the part of the opposite parties i.e. the appellants herein, the learned District Forum also erred in arriving at the finding that there was deficiency of service on the part of the opposite party Nos. 1 and 2. There being not a single iota of evidence, the learned District Forum also failed to assign any reason as to on what factual basis or material on record, had arrived at the said conclusion. More so, the finding arrived at by the learned District Forum, that the charges mentioned in the bill are excessive and unreasonable which are not commensurate with the treatment of the patient is wholly erroneous, inasmuch as, the learned District Forum failed to assign any reason on the basis of which it had arrived at the said finding. Ms. Agarwal therefore has submitted that to arrive at the finding of excessive amount, a test of acceptable objectivity related to some fixed standard has to be adopted , which has not been made and an adoption of a subjective view by the learned District Forum, based on presumption and assumption and personal assessment to justify that a particular charge is excessive, would be wholly impermissible and totally untenable. The son of the complainant having met with a road accident on 13-5-2002, suffered severe head injuries and on the patient’s examination by one Prof. Nagesh of GM. Hospital, the complainant was advised to take his son outside Assam for better treatment. It is to be kept in mind that when the patient was brought from GM Hospital to Aditya Hospital (opposite party No. 1) which covers a distance of 25 meters, he was “intubated” and “bagged” by a Doctor, as he was not breathing adequately. The patient’s motor score was 2 at the time of admission which means his hands and legs were not moving properly even at the time of admission, the patient had a GCS of 3T/15 ( as per medical record), and his pupils were not reacting, which means he had very little chances of recovery. In fact, the complainant’s son was in a state of coma. The opposite party No. 3 who is a Neurosurgeon at appellant No. 1, has categorically stated in his reply to the consumer complaint dated 6-3-2003 that “ the prognosis for a patient with a motor score of 2% is 85% mortality and with non reacting pupils is 91% mortality and when both are present together, the chances would be even slimmer.” Further, the opposite party No. 3 has also stated that, “ we could have saved his life but whether the patient would ever understand, speak or move his right sided limbs were doubtful”. This was conveyed to the relatives. Then they said, “ even if he survives, it would be enough for them”. With this expectation, the patient was operated upon, after taking the necessary consent and explaining the poor prognosis as written in the Discharge Summary.” Referring to the above observation made by appellant No. 3 (proforma respondent No. 2), Ms. Agarwal submitted that despite the poor prognosis, under the medical care and treatment of the appellants and the proforma respondent No. 2, the son of the complainant came walking, fully conscious and talking on 6-1-2003 in the OPD.
19. Ms. Agarwal therefore has submitted that the findings recorded by the District Forum that there was deficiency of service on the part of the appellants, is wholly perverse and not sustainable in law and therefore, the impugned judgment and order is liable to be set-aside and quashed. She has further submitted that the learned District Forum failed to take into consideration the reply/written statement submitted by the proforma respondent No. 2 who serves as Neurosurgeon since 1992, and has categorically stated in his reply that the charge of Rs. 300/- per day for ICU visits and Rs. 200/- per day for visits in the wards, is standard for all doctors in Dibrugarh. As per available record, the patient was admitted in ICU on 14-5-2002 and discharged from ICU on 10-7-2002 i.e. total 56 days in the ICU. On the other hand, the patient was in the hospital for 103 days, including 57 days in ICU. Therefore, the bills submitted by the appellant is not high considering his stay in the hospital as well as in the ICU. The learned District Forum did not take into consideration this fact and held that the charges/bills submitted by the opposite parties/appellants was on higher side. Determination of charge i.e. what charge ought to have been fixed for what type of cases, is not as per jurisdiction vested upon the District Forum. It is the hospital authority who knows what charge should be fixed in which type of cases. Regarding charge realized for physiotherapy, Ms. Agarwal has submitted that for physiotherapy to a patient, no separate room is required and physiotherapy can very well be done at the bed of the patient. Further case of the appellants is that, the patient Mr. Promod Sharma i.e. the son of the complainant came out walking fully conscious and talking on 6-1-2003 in the OPD. The evidence on record clearly demonstrates that the untiring efforts and medical attention had helped the patient to recover soon who had sustained severe head injury and was lying in a state of coma. After careful scrutiny of the medical record it would be evident that bills submitted by the appellants, in fact, normal in this type of cases and thus, it is evident that the complainant with an intention to avoid due and legitimate payment to the appellants, the instant complaint was filed after recovery of the patient from coma and the satisfactory recovery in a case of such a severe head injury, which the learned District Forum did not take into consideration and committed manifest error of law in directing the appellants to pay Rs. 25,000/- to the complainant for harassment and mental agony without indicating and/or adverting to how such harassment and mental agony was caused due to the bill amount charged by the appellants. Moreover, there being no evidence on record as to the claim of the complainant of harassment and mental agony for charging excess bill, the District Forum only showed sympathy to the complainant of having suffered harassment and mental agony. In that view of the matter also, the impugned judgment and order is liable to be set-aside and quashed.
20. Ms. Agarwal, learned counsel, appearing for the appellant has further submitted that there being no iota of evidence to show that the appellants charged excessively, the learned District Forum erred in arriving at the finding to the effect that the appellant resorted to unfair trade practice in extracting excessive amount
from the complainant. Further, for deficiency in relating to any service means any fault, imperfection, short coming, inadequacy in the quality, nature and manner or performance which is required to be maintained under law or has been undertaken by the party to be performed under a contract or otherwise and in the instant case no fault, imperfection, short comings, inadequacy in the quality, nature and manner or performance can be attributed to the service rendered by the appellants and as such the learned District Forum erred in arriving at the purported conclusion in the absence of any evidence that there has been deficiency of service on the part of the appellants and as such, coming into the conclusion by the learned District Forum that there was deficiency in service on the part of the appellants is not sustainable in law, and on this ground alone, the impugned judgment and order is liable to be set-aside and quashed. More importantly, District Forum also failed to hold that the complaint was liable to be dismissed for non-joinder of necessary party, inasmuch as, the Insurance Company namely, National Insurance Company Ltd was not made party by the complainant nor the Nurses against whom allegations have been made for dereliction of duty etc. have been made party. This aspect of the matter, though argued by the appellants before the learned District Forum, the District Forum did not take into consideration. There being no dereliction of duty, improper treatment and negligence on the part of the appellants, the complainant is not entitled to any relief or reliefs as claimed for. The learned District Forum ought to have dismissed the complaint by holding that the complaint is vexatious. On the other hand the impugned judgment and order has been passed only on the basis of surmises and conjectures, therefore in any view of the matter, the same is liable to the set-aside and quashed.
21. It has already been stated hereinabove that none appeared on behalf of the respondent (complainant) since 28-01-2014.Today also none appeared when the matter was called on. As the appeal is of the year 2004, we have decided to dispose of the appeal after hearing the learned counsel appearing for the appellant and on the basis of material on record. We have heard the learned counsel appearing for the appellants at length. Perused the materials available on record and duly applied our mind to the submissions made by Ms. Agarwal, learned counsel appearing for the appellant. We are also of the considered opinion that, in the facts, and circumstances of the case, the complainant’s case is liable to be dismissed, more so, apart from the submission made above, the Commission notes that, it would be too much to hold a Hospital guilty of unfair trade practice, after successful completion of operation of a serious head injury, and to drag up before any judicial forum, only because, as per complainant, the Hospital charged excessive bill amount, that too no attempt has been made by the complainant to prove that in comparison to other Hospitals, the Hospital in question had charged excessive bill. On the other hand, while passing the impugned judgment and order, the District Forum has held as such, “ In support of his allegation made by the complainant in his complaint petition pertaining to medical negligence by the opposite parties, no expert witness has been examined. In absence of corroboration from any medical expert, I give no credence to the allegation made against the opposite parties by the complainant.”
22. On a holistic view of the matter, the Commission can not, in the fitness of things, hold that the Hospital has done such a grave illegality which can constitute “unfair trade practice” as held by the learned District Forum.
23. In view of the discussion made above, we are left with no doubt that the judgment of the learned District Forum is liable to be interfered with, which we hereby do. The impugned judgment of the learned District Forum is set aside and quashed and the appeal of the appellant is allowed.
24. Statutory amount deposited by the appellant shall be returned to the appellant or their authorised agent.
25. Parties shall bear their own costs.
26. Send down the original record to the District Forum along with a copy of this judgment.
