Appeared at the time of arguments

For the Appellant       :       in person

For the Respondents   :       Mr. Kanishk Rana, Advocate for R-1 & 2

                                        None for Ors.

Pronounced on: 23^rd May 2023

ORDER

1.     The Appellant/Complainant has filed the instant Appeal under section 19 of the Consumer Protection Act, 1986 (in short “the Act”), against the Order dated 23.02.2018 passed by the State Consumer Disputes Redressal Commission, Bihar (for short the “State Commission”) in Consumer Complaint No. 30 of 2014, wherein the State Commission, dismissed the Complaint.  

2.     On 28-04-2014 Mr. Ankit Pandey (since deceased for short the 'Patient') the son of Complainant visited Dr. K.M. Sahai (OP-2) at Red Cross Bhawan Patna (OP-1) with complaints of fever for the past 5-6 days. The patient underwent certain tests, including SGPT, as advised by the doctors. He followed the prescribed treatment but experienced worsening symptoms such as yellowness of eyes and vomiting. The patient approached Dr. Fzal Imam Ali (OP-3), who prescribed medicines for jaundice without proper authorization. Consequently, on 30-04-2014 the patient was transferred to Patna Medical College Hospital (PMCH- OP4), but treatment there proved unsatisfactory. Subsequently, the patient was taken to Ruban Emergency Hospital, Patna (OP-5). As the patient's condition further deteriorated, on 06-05-2014 he was admitted in ILBS, New Delhi under Dr. S. K. Sarin (OP-6). Unfortunately, during treatment, the patient expired on 12-05-2014 due to liver failure and acute renal failure (ARF). Being aggrieved, due to medical negligence the Complainant filed a consumer complaint no. 30/2014 before the State Commission seeking compensation of Rs. 45 lakh, along with interest @ 12% per annum.

3.      The State Commission based on the averments dismissed the Complaint of the Complainant with the following observation: -

“…3. Respective evidence on affidavit, written notes of arguments have been filed. The Complainant has filed Medical Board report dated 09-052016 which is on the record. It is admitted fact that the patient Ankit Pandey was under treatment of O.P.-Red Cross Bhawan Doctor, Near Gandhi Maidan for 5-6 days. The Patient has jaundice problem. When there was no improvement, then he was brought to 0.P.-3 Doctor but the condition of the patient was not better. He was under treatment of O.P.-P.M.C.H. Doctor on 30-04-2014. However, the condition was not improved. He was under treatment of O.P.-Ruban Emergency Hospital Patna on 30-04-2014. Lastly, the patient moved to 0.P.-6 Dr. S.K. Sarin Basant Kunj New Delhi on 06-05-2014. During treatment of the patient, he died on 12-05-2014 due to Liver and renal failure. The Medical Board report has been filed by the complainant which is in P/81 to P/ 84 of the record. The Medical Board has observed that there was no wilful medical negligence with bad intention in the treatment of O.P.-l to 6 - Doctors. Medical Board report dated 09-05-2016 has been filed by the complainant as an evidence annexure-10. However, Medical Board report has been challenged before the Hon'ble High Court Patna. CWJC No.- 12634 of 2016 was withdrawn by the Petitioner-complainant vide order dated 07-09-2016 in CWJC No.-12634/2016. At that situation under section 13 (4) (IV) of the Consumer Protection Act, 1986, the allegations levelled against the O.P.- 1 to 6 Doctors are not proved. The complainant has failed to substantiate the allegations. Experts report proves that there was no negligence and deficiency in service on the part of the O.P.-l to 6 Doctors in treatment of the patient Ankit Pandey. We have great sympathy with the complainant as his son was an engineering student and died, under treatment of doctors.”

4.     Being aggrieved by the impugned Order of the State Commission, the Complainant filed the instant Appeal.  

5.     Heard the learned Counsel on both the sides and perused the material on record. They reiterated the facts and the evidence filed before the State Commission. I gave my thoughtful consideration. 

6.     The Appellant / Complainant in person argued that the OP-2 could have saved the patient if the SGPT values seriously during the patient's visits on 28/04/2014 and 29/04/2014. The OP removed the drug LARIAGO from the medication regimen. The patient's life could have been saved if   antibiotic CLAVAM 650 was prescribed based on culture sensitivity test. The dosage prescribed by OP-2 on 28/04/2014 (three tablets per day) was incorrect and it led to sepsis from 28/04/2014 to 12/05/2014. Thus, the treating doctors were  negligent and to provide effective medical treatment. It was restrictive trade practices and the supply of unsuitable drugs instead of appropriate medications. The patient suffered the deceptive service and mismanagement at the hands of OP - 1 to 6.

7.     The State Commission solely relied upon the withdrawal of writ petition filed by the Complainant and dismissed the Complaint without considering the evidence. Also overlooked contradiction between the medication prescribed and patient’s actual condition as either viral jaundice or malaria. The report of expert committee was biased, which also ignored that OP-3 was a Unani doctor, who illegally prescribed allopathic drugs. 

8.     The learned Counsel for the OP-2 argued that the Complaint was not maintainable as the OP-1 provides services free of cost and the doctors, including OP-2 serve voluntarily on an honorary basis.  He relied upon Hon'ble Supreme Court in the landmark case of Indian Medical Association v. V.P. Shantha & Ors.[1] held that a medical practitioner employed or attached to a hospital/nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1)(o) of the Act,1986. 

9.  He further argued that the Complainant failed to prove negligence on the part of OP-2. There is no proof of the Appellant purchasing the alleged medicines from the OP- 1 clinic. The OP-2  actually prescribed additional tests such as total bilirubin (T +D)  and also tests for Dengue, Malaria to determine the cause of the patient's illness, but the Appellant did not follow. Instead, he took treatment from a Unani practitioner and the patient was shifted between different doctors and hospitals. Therefore, the allegations of negligence are not sustainable. The treatment given to the patient by the OP-2 was as per the standard medical practice. He relied upon the decision of the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab & Ors[2].  

10.    In the instant case, the Complainant raised several allegations which are unsupported by the cogent evidence. I would like to rely upon the recent judgment of Hon’ble Supreme Court in Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.[3], whereby it was held in paragraphs 32 and 34 of judgment as below:-

“32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[4], this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others[5] held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence.”

11.    Based on the discussion above, I do not find any negligence attributable to the Opposite Parties. Thus to conclude, I affirm the reasoned Order of the State Commission. There is no merit in the instant Appeal. The same stands dismissed.

There shall be no Order as to costs.