Learned Counsel for the complainant placed reliance on I (2006) CPJ 16 (NC) – Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya in which it was held that if fees is paid towards receiving medical services by the complainant, the complainant falls within the purview of consumer. There is no dispute on this legal aspect and certainly in the present case complainants being legal heir of deceased, falls within the purview of consumer as opposite party has charged fees for C.T. Scan, X-ray, etc. Learned Counsel for the complainant also placed reliance on (2005) 6 SCC I – Jacob Mathew Vs. State of Punjab and Anr. in which it was held that complainant has to prove 3 constituents, namely; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant. It was further observed that if the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
O R D E R
PRESIDING MEMBER
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 39 OF 2003
1. Sh. Mahesh Prasad Aggarwal
S/o late Lala Har Prasad Aggarwal
2. Smt. Deepti Aggarwal
Widow of late Rajeev Aggarwal
3. Kumari Manjari
4. Kumari Mayuri
5. Master Akshay
All minor daughters and son of late Rajeev Aggarwal
(Through their mother Smt. Deepti Aggarwal, their next
Friend and natural guardian)
All R/o 39, Inner City, Ring Road,
Agra – 1 (U.P.) …Complainants
Versus
M/s. Kamayani Patients Care India Ltd.
672, Geeta Mandir NH 2
Guru Ka Taal, Secundera
Agra – 282 07 (U.P.) … Opp. Party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
PRONOUNCED ON 3rd JANUARY, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Complainants have filed complaint against the opposite party for recovery of Rs.30.00 lakhs as compensation.
2. Brief facts of the complaint are that complainant no. 1 is father of deceased, Rajeev Aggarwal, complainant no. 2 is wife of deceased Rajeev Aggarwal and complainant nos 3 to 5 are minor daughters and son of deceased Rajeev Aggarwal. Father Rajeev Aggarwal aged 41 years met with an accident while he was proceeding towards Agra as his vehicle overturned and he sustained multiple serious injuries and became unconscious. He was immediately taken to opposite party-hospital at Secundra, Agra where he was admitted and Rs.1200/- were charged for C.T. Scan of head, Rs.300/- for X-ray chest and wrist, Rs.600/- as OT charges, Rs.500/- as emergency charges and Rs.500/- as Doctors examination fee. Rajeev Aggarwal was plastered in left hand and he was discharged and was informed that he is alright. He was not given documents of discharge. Rajeev Aggarwal was complaining of serious headache and pain at back but no treatment regarding aforesaid pain was given to Mr. Rajeev Aggarwal while he was in opposite party-hospital. Rajeev Aggarwal was taken to the house, though, his legs and hands were not moving properly besides suffering from severe pain in head and back. Elderly persons of his family advised to shift Rajeev Aggarwal to good hospital in Delhi and for this purpose ambulance was hired on 15.10.2001 and proceeded for Delhi but Rajeev Aggarwal collapsed after he travelled about 20 kms on account of the injuries sustained by him in the accident. Complainants contacted opposite party-hospital to supply entire medical record but opposite party-hospital refused. From post mortem report it was revealed that the deceased had fracture of left partial bone and there was evidence of haematoma of left side of the brain and even the membranes were found congested. 100 ml. free clotted blood was also found in the brain. Opposite party-hospital neither operated nor advised operation and on account of negligence of opposite party-doctors, Rajeev Aggarwal succumbed to death. The deceased, Rajeev Aggarwal was tee-totaller having good health and earning about 3 lakhs per annum and was also assessed to income tax. The deceased last assessed income was Rs.3,35,332/-. There is longevity of life in the family of the deceased as his father about 75 years old is alive, hence, complainant may be awarded Rs.30 lakhs as compensation along with 18% p.a interest.
3. opposite party-hospital filed written statement and submitted that deceased was given first-aid treatment as outdoor patient at the hospital of opposite party. It was admitted that C.T. scan of the head and X-ray of the chest was advised by the opposite party-hospital and Rs.300/- were charged, Rs. 600/- were charged for operation theatre and Rs.500/- were charged as fee of doctor. It was further admitted that first-aid treatment by putting bandages on the wounds of the deceased was given. Duty doctor of opposite party-hospital very vehemently advised the deceased to be admitted in the hospital but this advice was not followed and was not admitted in the hospital. When Rajeev Aggarwal was brought to the opposite party-hospital, he was accompanied by his friends and after sometime his father and brother Dr. Rohit Aggarwal came there and they were of the firm view that they did not want to admit Rajeev Aggarwal in opposite party-hospital or take further treatment from the opposite party-hospital. Dr. Rohit Aggarwal represented himself to be a doctor having his own nursing home at his house where he wanted to treat the deceased. So, the deceased was not admitted in opposite party-hospital, hence, question of discharge does not arise. The deceased was not in a condition to be taken to Delhi rather should have been admitted in opposite party-hospital for proper care and treatment. The deceased was brought to the opposite party-hospital in the afternoon of 14.10.2001 and was taken away within an hour by his brother Dr. Rohit Aggarwal, his father and other relatives. As the deceased was not given proper care and treatment by his own relatives the deceased, Rajeev Aggarwalexpired. It was denied that complainants contacted the opposite party-hospital to supply medical record and opposite party-hospital refused to supply the said medical record. The deceased’s earning, longevity of life and his last assessed income was also denied. It was further submitted that no compensation is payable by opposite party-hospital as there was no negligence or deficiency of service on the part of the opposite party-hospital and prayed for dismissal of complaint.
4. Complainants filed replica and alleged that Duty Doctor of the opposite party-hospital did not advise admission in the hospital and further alleged that Dr. Rohit Aggarwal did not say that they do not want to admit the deceased or take further treatment at the hospital. Deceased was neither properly treated nor CT Scan was properly observed and deceased was negligently discharged, he was not taken voluntarily from opposite party-hospital and further submitted that deceased expired on account of negligence of opposite party-hospital.
5. Complainants filed affidavit of Mahesh Prasad Aggarwal (father) and Dr. Rohit Aggarwal (Brother). Opposite party filed affidavit of Dr. Munishwar Gupta (Managing Director of opposite party-hospital). Parties also filed documents in support of their case.
6. Heard learned Counsel for the parties and perused record.
7. Learned Counsel for the complainant submitted that opposite party-hospital discharged the deceased Rajeev Aggarwal negligently, though, deceased was not in a position to move, hence, complainants may be awarded compensation. On the other hand, learned Counsel for the opposite party submitted that deceased was never admitted as indoor patient in opposite party-hospital, but was given first-aid and in spite of advice of opposite party Duty Doctor, relatives of deceased took away the deceased from opposite party-hospital in such circumstances, no deficiency on the part of opposite party-hospital, hence, complaint may be dismissed.
8. It is an admitted case of the parties that deceased, Rajeev Aggarwal sustained injuries on 14.10.2001 in an accident and was brought to opposite party-hospital by some persons. It is also admitted that deceased Rajeev Aggarwal’s C.T. Scan and X-ray of chest was done by opposite party-hospital after charging money and opposite party-hospital also charged Rs.600/- as O.T. Charges and Rs.500/- as Doctor’s examination fee. It is also admitted case of the parties that after putting plaster and bandages on the left hand of the deceased, he was discharged/takenaway by his relatives from opposite party-hospital.
9. Learned Counsel for the complainants vehemently argued that opposite party- Duty Doctor committed negligence in discharging patient from the hospital and placed reliance on Notification dated 11.3.2000 issued by Medical Council of India. He has drawn our attention to para 1.3 of Chapter I (Code of Medical Ethics) according to which every physician is required to maintain medical record pertaining to his indoor patient for a period of 3 years. The important question in this case is whether the deceased, Rajeev Aggarwal was indoor patient in the opposite party-hospital. Opposite party-hospital has proved Annexure ‘E’ vide affidavit of Dr. Gupta which reveals that on 14.10.2001, 4 patients were admitted in opposite party-hospital and deceased was not admitted in the opposite party-hospital as indoor patient. In these circumstances, Notification dated 11.3.2000 issued by the Medical Council of India is not applicable to the present case and opposite party-hospital was not required to maintain the medical record of deceased Rajeev Aggarwal, as deceased was treated as outdoor patient and after C.T. Scan, X-ray and giving first-aid, the deceased Rajeev Aggarwal was taken away from opposite party-hospital by his family members and relatives.
10. Complainant Mahesh Prasad Aggarwal has mentioned in para 1 of his affidavit that Rajeev Aggarwal died on 21.11.2001 which is not correct in the light of evidence of other witness and documents which shows that Rajeev Aggarwal died on 15.10.2001. Complainant Mahesh Prasad Aggarwal and Dr. Rohit Aggarwal who is brother of deceased have stated in their affidavit that deceased was not fit and on reaching home he was very uncomfortable and his condition was deteriorating. His sufferings were manifold and pain was unbearable and in such circumstances it was decided to shift him to a good hospital in Delhi and accordingly the ambulance was hired on 15.10.2001. This evidence reflects that after taking deceased Rajeev Aggarwal from opposite party-hospital he was brought to his residence which is not believable because when his legs and hands were not moving properly and was suffering from severe pain in back and head, no person will take his kith and kin to his home instead of shifting him to some hospital particularly when deceased’s brother Dr. Rohit Aggarwal was running Usha Memorial Health Centre in the same city having 24 hrs. facility for fracture and accident cases as reflected in photograph of Annexure ‘A’, ‘B’ & ‘C’ which have been proved by opposite party’s evidence. In normal course either Rajeev Aggarwal would have been brought to Dr. Rohit Aggarwal’s hospital or admitted to some other hospital instead of bringing him home as condition of Rajeev Aggarwal was deteriorating. Complainant’s witness nowhere explained that after taking Rajeev Aggarwal to opposite party-hospital where was he kept for another 24 hours or more before proceeding for Delhi. It was obligatory on their part to lead evidence and prove that in last 24 hrs. proper care of the deceased Rajeev Aggarwal was taken which they failed to do, rather they have suppressed material facts about his treatment in last 24 hours.
11. Complainant’s witness simply say that after plaster, opposite party informed that Rajeev Aggarwal is alright and fit and can be taken to home and he was discharged. This statement has not been supported by any other independent witness, though, as per complaint and written statement, Rajeev Aggarwal was brought to opposite party-hospital just after accident by other persons and these two witnesses reached opposite party-hospital after sometime. Both witnesses being interested in the complaint cannot be believed unless supported by other independent witness, particularly, when opposite party in the written statement specifically stated that Duty Doctor of opposite party-hospital advised the deceased to be admitted in the hospital but his advice was not followed and Rajeev Aggarwal was not admitted in the hospital. Same fact has been proved by affidavit of opposite party witness. In such circumstances, it cannot be believed that in spite of insistence by the deceased’s father and brother, the deceased was not admitted in opposite party-hospital and was discharged but this inference can be drawn that advise of opposite party-hospital was discarded as deceased’s brother Dr. Rohit Aggarwal was having his own hospital in the same city. He and his father insisted opposite party-hospital not to admit Rajeev Aggarwal in the hospital and took away him for treatment either in Dr. Rohit Aggarwal’s hospital or in some other hospital where Rajeev Aggarwal’s condition deteriorated and ultimately died on next day.
12. Learned Counsel for the complainant has not alleged any deficiency in taking C.T. Scan, X-ray and plaster of Rajeev Aggarwal’s left hand. In such circumstances, neither any negligence nor any deficiency of service can be attributed on the part of opposite party-hospital towards treatment of Rajeev Aggarwal and no compensation can be awarded to the complainant on account of sad demise of the deceased Rajeev Aggarwal on next day.
13. Learned Counsel for the complainant placed reliance on I (2006) CPJ 16 (NC) – Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya in which it was held that if fees is paid towards receiving medical services by the complainant, the complainant falls within the purview of consumer. There is no dispute on this legal aspect and certainly in the present case complainants being legal heir of deceased, falls within the purview of consumer as opposite party has charged fees for C.T. Scan, X-ray, etc. Learned Counsel for the complainant also placed reliance on (2005) 6 SCC I – Jacob Mathew Vs. State of Punjab and Anr. in which it was held that complainant has to prove 3 constituents, namely; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant. It was further observed that if the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. We agree with the proposition of law laid down by Hon’ble Apex Court but this citation does not help to the complainants in the present case. Pleadings and evidence clearly proves that when Rajeev Aggarwal was brought to Opposite party-hospital, C.T. Scan, X-ray, etc. were done immediately and his hand was plastered and in such circumstances, it can be presumed that Opposite party-hospital took care of the deceased, Rajeev Aggarwal. Complainant has failed to show any negligence or deficiency in taking C.T. Scan, X-ray or plastering his hand. Leaned Counsel for the complainant submitted that Opposite party-hospital discharged Rajeev Aggarwal against the wishes of deceased, hence, Opposite party-hospital is guilty of negligence as Opposite party-hospital failed to take standard of care required under the law. This argument is devoid of force in the light of discussion made earlier as we have come to the conclusion that Rajeev Aggarwal, the deceased was never admitted as indoor patient in the Opposite party-hospital, rather Rajeev Aggarwal was taken away by the complainant, Mahesh Prasad Aggarwal and deceased’s brother Dr. Rohit Aggarwal and other relatives against the advice of Duty Doctor of Opposite party-hospital and further supressed material facts about Rajeev’s treatment in last 24 hours after he was taken away from Opposite party-hospital.
14. Learned Counsel for the complainant also placed reliance on I (1997) CPJ 332 – Kanaiyalal Ramanlal Trivedi & Ors. Vs. Dr. Satyanarayan Vishwakarma & Anr. in which it was held that in case of death due to medical negligence compensation can be awarded as in fatal motor accidents. This citation does not help the complainant in present case as complainant has failed to prove negligence or deficiency on the part of Opposite party-hospital.
15. In the light of the above discussion, it becomes clear that Opposite party-hospital was neither negligent nor deficient in providing services to the deceased, Rajeev Aggarwal and complaint is liable to be dismissed.
16. Consequently, complaint filed by the complainants against Opposite party-hospital is dismissed. Parties are directed to bear their own costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( SURESH CHANDRA)
MEMBER
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