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  • Amar
    Singh v.Frances Newton Hospital and
    Others


    2001 (1) CPR 379

        

    Consumer Protection Act. 1986- Section
    15 – Medical negligence – Father of
    complainant admitted in hospital of
    opposite party – Death alleged to have
    been caused due to carelessness of
    opposite party – FIR registered -
    Investigating officer approached Civil
    surgeon for obtaining report of Board
    of Doctors – Death of father of
    complainant as per report was due to
    Cardio Respiratory arrest which caused
    to coronary Artery disease and
    cerbrovarcular accident – Drugs given
    for treatment justified – death of
    complainant’s father natural death
    being old man of eighty years -
    District Forum held there was not any
    negligence or recklessnessor departure
    from treatment – Dismissed complaint -
    Appeal  – No legal infirmity in
    detailed and well reason order passed
    by District Forum.

      

    IMPORTANT POINT :-

    The doctor when consulted by patient
    owes him certain duties 

    (a) a duty of care in deciding whether
    to undertake the case 

    (b) a duty of care in deciding what
    treatment to give 

    (c) a duty of care in administration
    of that treatment .

      

    ORDER :-

    Davinder Kaur Bhamrah, Member – This
    is an appeal under Section 15 of the
    Consumer Protection Act, 1986, against
    the order dated 20-11-1998 passed by
    the District Consumer Disputes
    Redressal Forum , Ferozepur, for
    damages was dismissed. Aggrieved by
    allowing the calim of the appellant to
    the extent of full amount as mentioned
    in the complaint with costs
    throughout.

      

    Brief facts of cases are :-

    Shanker Singh aged 80 years, father of
    the complainant Amar Singh , was
    admitted in the Frances Newton
    Hospital on 19-7-1996. As per
    allegations of the complainant , the
    death ofhis father carelessness of the
    Opposite Party No. w, against the O.P.
    No. 2 with the ordes of the Hon’ble
    Punjab and Haryana High court. It is
    stated that the investigation officer
    of police approached the Civil Surgeon
    , Ferozepur Ex. R-3 for obtaining the
    opinion of the Board of Doctors . The
    Civil Surgeon , Ferozepur vide Ex.
    r-2, the death of the father of the
    complainant was due to
    “Cardio-respiratory arrest”
    which caused to the “Coronary
    Artery disease and cerebrovarcular
    accident” and the drugs which
    were given for treatment were
    justified. After obtaining the said
    report of the Board of Doctors. The
    investigating Officer of police sought
    opinion of the D.A (Legal) Ferozepur
    vide Ex R-4. The Deputy D.A. (Legal)
    Ferozepur made his report Ex. R-5
    dated 27-11-1997 vide which he opined
    that the treatment and medicines given
    to Shanker Singh, father of
    complainant were justified and death
    of Shanker Singh was natural death
    being an old man of 80 years and he
    recommended the case for cancellation.

      

    After perusing the record, the
    District Forum reached the conclusion
    recklessness or departure from
    accepted and establlished rules of
    treatment, on the complainant has
    badly failed to prove his case by
    leading any cogent and convincing
    evidence and dismissed the complaint .

     

    In the appeal before us , it has been
    stated that the death of the father of
    the complainant after two days of
    admission in the hospital with no
    serious allment itself goes to show
    that the patient died due to the utter
    rashness and negligence on the part of
    O.P. No. 2 and hence it is deficiency
    in rendering service and the prayer is
    to compensate the appelant for the
    amount claimed by him.

      

    The question which arises for
    consideration in this appeal is
    whether O.P. No. 2 can be held liable
    for any negligence in discharge of his
    duty as  a physician ?

      

    The patient Shanker Singh was brought
    to the hospital on 19-7-1996 at 5:00
    p.m. with complaint of weakness of
    left side of body two hours prior to
    admission . On admission his pulse was
    80/min. regular, B.P. 160./86 mm. Hg.
    Respiration rate 20/min. A diagnosis
    of cerebrovascular accident with
    left-side hemiparesis was made. The
    appropriate treatment was given and
    investigation were carried out. Chest
    X-rayshowed the consistent with age.
    arctic calcification was seen. ECG old
    anterior wall myocardial infarction
    with the lateral wall and apicil
    Ischemic changes were seen. On follow
    up on 20th July, 1996 , his condition
    was stable, he had slight fever. On
    21st morning rounds general condition
    was stable ,he had slight fever. On
    21st morning rounds genreal condition
    was better but there were ‘ronchi’ in
    chest. So injection Lasic and
    injection Derephyllin were ordered and
    given at 10:20 a.m. , the patient
    suffered respiratory arrest followed
    bu cardiac arrest. Resuscitation
    methods were tried but proved
    unsuccessful and the patient was
    declared dead at 10:40 a.m. The cause
    of death being Cardio Respiratory
    Arrest’ and precipitating causes
    mentioned as ‘ Ischaemic Heart
    Disease’ Cerebrovascular.

      

    The diagnosis and treatment given by
    the O.P. No. 2 has been challenged buy
    the complainant levelling allegations
    against him but at the same time he
    has not produced any evidence to prove
    these allegations levelled in the
    complainant against the O.P. No.2. No
    expert opinion has been produced by
    the complainant to contradict the
    report of the Board of Doctors . All
    medical negligence cases concern
    various questions of fact , when we
    say burden of proving negligence lies
    on the complainant, it means he has
    the task of convincing the Court that
    his version of

      

    The Supreme Court of India , in Dr.
    Laxman Bala Krishna Joshi v. Dr.
    Trimbak Bapu Godbole & another ,
    has laid down that doctor when
    consulted by a patient owes him
    certain duties, namely, 

    (a) a duty of care in deciding whether
    to undertake the case

    (b) a duty of care in deciding what 
    treatment to give 

    (c) a duty of care in administration
    of that treatment. 

    A breach of any of these duties gives
    a cause of  action for negligence
    to the patient. It is in the light of
    the above principles that it is to be
    seen now whether there was a breach of
    duty of care on the part of O.P. 2 in
    the process of treatment of Shri
    Shanker Singh. the facts is the
    correct one.

      

    In the case in hand, there is nothing
    on record to prove the negligence
    doctor gets more strengthened by the
    report of the Board of the doctors and
    cancellation of the F.I.R lodged by
    the complainant.

      

    For the reasons recorded above, we do
    not find any legal infirmity in the
    detailed and well reasoned order
    passed by the District Forum . We can
    not be oblivious of the misery and
    mental agony caused by the frivolous
    and vexatious complaint to a doctor.
    Inexpensive remedy provided under the
    Consumer Protection Act to provide
    relief to the exploited has been
    exploited and the cheap remedy has
    been really made “cheap” by
    the complainant . Hence we dismiss the
    appeal with costs of Rs. 5000/- and
    the opposite parties are entitled to
    recover the same from the complainant
    in accordance with law. 

    Appeal dismissed.

        

  • RADHAKRISHNAN
    v. MANIKANDANUNNI


    II (2001) CPJ 167

       

    Consumer Protection Act, 1986 -
    Section 15 – Appeal – Negligence /
    Deficiency in Service – Inferior
    Quality of Medicine – Compensation -
    Opposite party sold the medicine to
    complainant – Complications developed
    on consuming the medicine -
    Complainant got himself admitted in
    Medical College – Compensation claimed
    – No expert evidence tendered -
    Complainant underwent treatment due to
    consuming of medicine not proved -
    Negligence / deficiency in service on
    part of opposite party not proved -
    Complaint rightly dismissed by Forum.

        

    Held – In the impugned order it is
    pointed out by the District Forum that
    there is no material to connect the
    opposite party that he caused to issue
    any advertisement. As regards the
    qualities of medicine in the question,
    no advertisement was produced. It is
    also pointed out that the notice Exbt.
    A13 contains nothing to connect the
    opposite party with the same. OPW1
    denied to his having sold the said
    medicine. The Commission who filed
    Exbt. C1 report at his visit did not
    see the opposite party in the concern,
    he says two colleagues of his were in
    the shop. As to how he infered them as
    the colleagues of the opposite party
    are not stated. A3, A5 A8, A9 and A10
    the prescriptions and bills for
    purchase of medicine, and Exbt. A1
    series the treatment record of the
    Medical College Hospital though could
    show that the complainant was an
    in-patient in the Medical College
    Hospital and he underwent treatment,
    there is no acceptable material to
    show that the ailment of the
    complainant for which he underwent
    treatment in the Medical College
    Hospital was caused due to consuming
    the aforesaid medicines. In a matter
    like this expert evidence as to the
    said aspect was necessary without
    which it would be hazardous to find
    that the ailment of the complainant
    was due to his taking the aforesaid
    medicines. No expert evidence was
    tendered. When no expert evidence on
    this aspect is tendered to connect the
    ailment of the complainant with the
    defects or deficiency of the medicine
    that he consumed, one cannot find that
    there was deficiency of service on the
    part of the opposite party, even
    assuming that he supplied aforesaid
    medicine. Opposite party is a `Kazhakakaran’
    attached to the temple, he is not a
    physician. Having regard to the fact
    that there is no expert evidence to
    demonstrate that on analysis of the
    aforesaid medicine it was found to
    have defect and the said defect caused
    ailment to the complainant , even if
    it is assumed that the opposite party
    sold or caused to be sold the
    aforesaid medicine and that the
    complainant consumed the same as
    claimed by him, unless the aforesaid
    expert evidence is forthcoming
    negligence or deficiency alleged by
    the complainant cannot be taken to
    have been established or proved. There
    is no evidence on that aspect. Having
    regard to the same the aforesaid
    finding of the District Forum cannot
    be successfully assailed. (Para 6)

      

    (ii) Ex-parte Order – Setting Aside -
    Jurisdiction of Forum – Suppression of
    opposite party`s description – Ex-parte
    order secured by fraud – Abuse of
    process of Court – Fora has
    jurisdiction to recall an order
    obtained by fraud – Ex-parte order set
    aside.

       

    Held : It will be noted that in para 4
    of the said petition the opposite
    party alleges that by giving wrong
    description of the opposite party the
    ex-parte order was secured by fraud.
    Therefore, the petition cannot be
    treated as one for review though it
    purportedly is styled as a review
    petition. The argument of the learned
    Counsel is, assuming that the District
    Forum has no jurisdiction to set aside
    the ex-parte order or review its
    order, since the Forum has the
    jurisdiction to recall an order
    obtained by fraud or forgery; or by
    abuse of process of Court the Forum
    can recall the order. 

    (Para 8 )

      

    Result : Appeal dismissed.

      

    ORDER

      

    Mr. Justice L. Manoharan, President –

    The complainant in O.P.No.186/96 on
    the file of the Consumer Disputes
    Redressal Forum, Malappuram is the
    hospital.

       

    2. The complainant alleged
    before the District Forum; he was
    employed as Tutor in Paramount Academy
    of Computer Education and since he
    suffered from dust allergy due in
    which he developed cough and
    obstruction in breathing. Then
    attracted by the notice issued by the
    opposite party claiming the qualities
    of a medicine “Swasasudarana”,
    he approached the opposite party who
    assured him that on taking the
    aforesaid medicine for one year his
    ailment would be got redressed upon
    which he took 20 bottles of the said
    medicine and on coming to know that
    the said medicine was banned, he again
    approached the opposite party who
    claimed, same medicine is available as
    `Vasakasamrutham’, believing the said
    representation on consuming two
    bottles of the said medicine he
    developed swelling on the tongue and
    feet, it became difficult for him to
    talk and walk, growth from the side of
    the eyes were also noticed. Thereupon
    he approached Dr.P.P. Joy and
    Dr.Krishnakumar who treated him at
    Medical College Hospital, Calicut. He
    was hospitalized for 12 days in the
    Medical College Hospital, Calicut and
    had to spend an amount of Rs.12000/-
    for treatment. Apart from financial
    loss he had to undergo anxiety and
    agony due to the said conduct and act
    of the opposite party. He wanted
    redressal.

       

    3. In the version filed by the
    opposite party he denied to his having
    supplied such medicine or advised him
    to take the said medicines. He is not
    the owner of “J.R.Consultants”
    mentioned in the complaint, the
    proprietor of which is one Rajan. He
    has not published any notice as is
    alleged. If at all the complainant
    sustained any injury, the opposite
    party is not responsible for the same
    and the complication for which he
    allegedly underwent treatment in the
    Medical College Hospital also was not
    due to his consuming any medicine
    supplied by the opposite party. He is
    not trained for treating patients. He
    is only a “Kazahakakaran” in
    a temple. He wanted dismissal of the
    complaint.



    4. The complainant got himself
    examined as P.W.2 and produced
    Exbts.A1 to A13, MO1 and M02,
    Commissioner filed Exbts.C1 and C2
    reports. The opposite party was
    examined as OPW1. On a consideration
    of the said material the District
    Forum dismissed the complaint. The
    said dismissal is under challenge in
    this appeal.

       

    5. Learned Counsel for the
    appellant assailed the order of the
    District Forum maintaining that the
    District Forum did not correctly
    appreciate the evidence produced on
    behalf of the complainant and had it
    was approached the same in the correct
    perspective the Forum would have seen
    that actually the opposite party sold
    the medicine to the complainant and on
    consuming the same he developed
    complications which required him to
    get himself admitted in the Medical
    College Hospital, Calicut and undergo
    treatment. Yet another argument was
    also advanced by the learned Counsel
    maintaining that the setting aside of
    the ex-parte order dated 27th
    September, 1996 by the order dated
    21st April, 1997 on I.A.18/96 by the
    District Forum was erroneous and
    without jurisdiction and, therefore
    the order on I.A.18/96 has to be
    ignored. Consequently the order dated
    27th September, 1996 even now govern
    on that ground also the impugned order
    by the District Forum cannot be
    sustained. On the other hand the
    learned Counsel for the respondent
    supported the order of the District
    Forum pointing out that there was no
    material before the District Forum to
    show, either, the opposite party sold
    the medicines in question to the
    complainant or on consuming the same
    he sustained injury. In other words,
    according to him on both aspects,
    viz., the opposite party sold he
    medicine, and on consuming the same
    the complainant developed
    complications which required him to be
    hospitalized and undergo treatment
    there is no acceptable evidence. Apart
    from the same, here being no expert
    evidence to show that the aforesaid
    medicines caused the complication the
    complainant is not eligible for
    direction in his favour. As regards
    the order of the District Forum on
    I.A.18/96 it is maintained by the
    learned Counsel, since the said order
    has not been challenged, the
    complainant cannot questioned the
    same. Alternatively, it was maintained
    that the ex-parte order since was
    secured by practising fraud and abuse
    of process of Court, the District
    Forum was within its jurisdiction to
    re-call the said order. It is also
    contended that since the said order
    was rendered not by a Court, the
    infirmity, it at all any, cannot make
    the same absolutely void so as to be
    ignored.

        

    6. In the impugned order it is
    pointed out by the District Forum that
    there is no material to connect the
    opposite party that he caused to issue
    any advertisement. As regards the
    qualities of medicine in the question,
    no advertisement was produced. It is
    also pointed out that the notice
    Exbt.A13 contains nothing to connect
    the opposite party with the same. OPWI
    denied to his having sold the said
    medicine. The Commission who filed
    Exbt.C1 reports at his visit did not
    see the opposite party in the concern,
    he says two colleagues of his were in
    the shop. As to how he inferred them
    as the colleagues of the opposite
    party are not stated. The District
    Forum also points out that Exbts. A3,
    A5, A8 A9 and A10 the prescriptions
    and bills for purchase of medicine,
    and Exbt. A1 series the treatment
    record of the Medical College Hospital
    though could show that the complainant
    was in in-patient in the Medical
    College Hospital and he underwent
    treatment, there is no acceptable
    material to show that the ailment of
    the complainant for which he underwent
    treatment in the Medical College
    Hospital was caused due to consuming
    the aforesaid medicines. In a matter
    like this expert evidence as to the
    said aspect was necessary without
    which it would be hazardous to find
    the ailment of the complainant was due
    to his taking the aforesaid medicines.
    No expert evidence was tendered. When
    no expert evidence on this aspect is
    tendered to connect the ailment of the
    complainant with the defects or
    deficiency of the medicine that he
    consumed, one cannot find that there
    was deficiency of service on the part
    of the opposite party, even assuming
    that he supplied aforesaid medicine.
    Opposite party is a `Kazhakakaran’
    attached to the temple, he is not a
    physician. Having regard to the fact
    that there is expert evidence to
    demonstrate that on analysis of the
    aforesaid medicine it was found to
    have defect and the said defect caused
    ailment to the complainant, even if it
    is assumed that the opposite party
    sold or caused to be sold the
    aforesaid medicine and that the
    complainant consumed the same as
    claimed by him, unless the aforesaid
    expert evidence is forthcoming
    negligence or deficiency alleged by
    the complainant cannot be taken to
    have been established or proved. There
    is no evidence on that aspect. Having
    regard to the same the aforesaid
    finding of the District Forum cannot
    be successfully assailed.

      

    7. Now, as noticed that there
    is another argument by the Learned
    Counsel for the appellant that this
    complaint was once allowed ex-parte by
    the order dated 27th September, 1996,
    the same came to be set aside by the
    order on I.A.18/96. The said order
    according to the Learned Counsel for
    the appellant being void as without
    jurisdiction the ex-parte order which
    allowed compensation must be deemed to
    be in force. Therefore, irrespective
    of the aforesaid finding on the basis
    of the evidence, on the strength of
    the said ex-parte order the second
    order passed by the District Forum
    cannot have any effect. Reliance was
    made by the Learned Counsel on the
    decision of the Supreme Court in
    Jyotsana Arvind Kumar Shah & Ors.
    V. Bombay Hospital Trust, 1999 (1) SCC
    402=III (1999) CPJ 1 (SC)=VII (1999)
    SLT 146. In the said decision the
    Supreme Court holds, “State
    Commission, however, fell into an
    error in not bearing in mind that the
    Act under which it is functioning has
    not provided with any jurisdiction to
    set aside the ex-parte reasoned
    order.” It is urged by the
    Learned Counsel a reading of the order
    dated 27th September, 1996 since would
    show that the same is a reasoned
    order, the District Forum did not have
    the jurisdiction to set it aside. It
    is also urged by the Learned Counsel
    that I.A.18/96 was a petition seeking
    review of the order dated 27th
    September, 1996 since the Forum has no
    jurisdiction to review its earlier
    order, on that ground also the order
    of the District Forum is without
    jurisdiction. On the other hand
    Learned Counsel for the respondent
    maintained since the same is not a
    reasoned order the decision in
    Jyotsana`s case (supra) cannot have
    application. One cannot confuse an
    order on `merit’ with a “
    reasoned order.” Here the reading
    of the order would show that though
    the complainant has filed an affidavit
    to the amount mentioned in the
    complaint, and directs to pay the said
    amount. This would show that the Forum
    applied its mind, appreciated the ex-parte
    evidence tendered and then passed the
    order. Therefore, it cannot be said
    that the same is not a reasoned order
    though it is an ex-parte order.

       

    8. It is true, though the
    petition is styled as a review
    petition, the contents of the petition
    would show that the same is simply to
    set aside the order passed on
    27.9.1996. The petition was treated as
    such by the District Forum. It will be
    noted that in para 4 of the said
    petition the opposite party alleges
    that by giving wrong description of
    the opposite party the ex-parte order
    was secured by fraud. Therefore, the
    petition cannot be treated as one for
    review though it purportedly is styled
    as a review petition. The argument of
    the Learned Counsel is, assuming that
    the District Forum has no jurisdiction
    to set aside the ex-parte order or
    review its order, since the Forum has
    the jurisdiction to recall the order
    obtained by fraud or forgery; or by
    abuse of process of Court the Forum
    can recall the order. Reliance was
    made by the District Forum on the
    decision of the Supreme court in
    Indian Bank v. Satyam Fibers (India)
    Pvt.Ltd. 1996 (5) SCC 550. The Learned
    Counsel has another alternate argument
    that the order since was rendered by a
    `Forum’ not a effective inter-parties
    till the same is set aside by higher
    Forum. Reliance was made by the
    Learned Counsel on the decision of the
    Supreme Court in State of Kerala v. M.
    K. Kunhikannan Naimbiar Manjeri
    Manikoth, Naduvil (dead) & Ors.,
    AIR 1996 Supreme Court 906. Still
    another argument advance by the
    Learned Council is, in view of the
    decision of the Supreme Court in New
    India Assurance Co.Ltd. v. R.
    Srinivasan, (2000) 3 SCC 242-1 (2000)
    CPJ 19 (SC)=II (2000) SLT 520, the
    order on I.A.18/96 cannot be held to
    be without jurisdiciton.

        

    9. We may first take up the
    last point urged by the Learned
    Counsel for the opposite party as to
    the applicability of the decision in
    Sreenivasan`s case (supra). The said
    decision considers the jurisdiction of
    the Forum on the matter of restoration
    of a complaint dismissed for default;
    what is urged it, since the Supreme
    Court held that the Consumer Disputes
    Redressal Forum has inherent power and
    jurisdiction to restore a complaint
    dismissed for default provided the
    complainant shows good reason for
    non-appearance, the same principle
    should apply for setting aside ex-parte
    order also which also is rendered due
    to the default of the opposite party
    rendered due to the default of the
    opposite party to appear on the date
    to which the matter stood posted. We
    cannot go into the worthness of this
    argument, “the reasoning
    maintained by the Learned Counsel
    though may seem attractive,, as has
    already been noted, the Supreme Court
    since was held in Jyotsana`s case
    (supra), the Act has not provided
    jurisdiction to set aside ex-parte
    reasoned order, the Forum cannot set
    aside an ex-parte reasoned order. We
    cannot hold, since the later decision
    held in a matter for restoration of a
    complaint dismissed for default the
    FOR A has inherent jurisdiction to set
    aside ex-parte order also when there
    is the specific decision of the
    Supreme Court in Jyotsana`s case to
    the contrary.

        

    10. Now as to the question
    whether the order can be treated to
    have been recalled as has already been
    noted, in para 4 of the petition he
    alleges by giving the wrong
    description the opposite party the
    complainant got the ex-parte order by
    practising fraud. If there is
    suppression of the description of the
    opposite party and on account of the
    same the complainant secured an ex-parte
    order, having regard to the attending
    circumstances in a given case, the
    same could amount to abuse of process
    of Court which would enable the FORA
    to recall the ex-parte order. The
    order on I.A.18/96 is
    self-explanatory. It states, the
    notice to the opposite party initially
    was issued to “Mr. Unni,
    J.R.Consultants, Fathima Nagar,
    Mandoor.” The said notice was
    returned stating that there is no such
    establishment in Fathima Nagar,
    Mandoor and the name of the
    establishment is J.R. & Co. Tax
    Practitioners and Job Typing. The name
    of the owner was reported to be
    Manikandan Unni. Therefore, the name
    of the opposite party was wrong, and
    the name and details of the
    establishment also was wrong. The
    whole description of the opposite
    party thus was far from correct.
    Another notice sent with the
    particular furnished too was with
    incorrect description, his name was
    not shown in full. The service of the
    same notice was as
    “unclaimed” and it was on
    the strength of the said service, the
    opposite party was set ex-parte and
    the ex-parte order came to be passed.
    Now the name of the complainant is
    stated to be `Manikantanunni’. Even
    after getting the correct name and
    address of the opposite party in the
    complainant did not take steps to
    amend cause title of the complaint.
    The District Forum notes all these and
    says that the order came to-be passed
    with the wrong description of the
    opposite party; it finds therefore,
    the order cannot be said to be against
    the petitioner / opposite party. The
    District Forum also stated that it is
    doubtful whether the said order could
    be binding on the opposite party,
    observing so the District Forum sets
    aside the order. From the materials
    thus revealed it could be seen that
    not only the name of the opposite
    party / respondent was wrongly
    mentioned; the address of the
    establishment also was wrong and to
    crown that the service was as
    `unclaimed’. When such is the
    situation pronouncement of the ex-parte
    order with the wrong person in the
    party array stating that himself is
    the opposite party, in the facts and
    circumstances would amount to abuse of
    process of Court. Then the order on
    I.A.18/96 has to be upheld as one
    which recalled the ex-parte order. Now
    having regard to the aforesaid view
    taken by us it will not be necessary
    to go into the other question whether
    the said order was liable to be set
    aside by a higher Forum. When such is
    the situation the setting aside of the
    ex-parte.

           

  • V.
    Chandrasekar v. Malar Hospitals Ltd.


    2001 (1) CPR 628

       

    Consumer Protection Act, 1986 -
    Sections 12 and 17 – Medical
    negligence – Complainant underwent
    Coronary Angioplastry plus Stenting to
    LAD at opp. Party hospital but was not
    relieved of pain – He underwent then
    by-pass surgery in other hospital -
    Deficiency in service alleged in
    diagnosis and refusal on part of opp.
    Party to deliver the cassettes and
    photographs of Angiogram and
    Angioplastry alongwith report despite
    demand – Diagnosis made at opp. Party
    hospital was that complainant had a
    “Single Vessel Disease”
    whereas diagnosis made at other
    hospital was “Severe Triple
    Vessel Coronary Disease” – Wrong
    diagnosis and consequent treatment
    itself could not amount to negligence
    or deficiency in service – Complainant
    had been provided discharge summary
    providing all details – Non return of
    cassettes, photographs did not amount
    to deficiency in service.

    (Paras 11 to 14)

      

    Result : Complaint dismissed

      

    Case referred:

    1. Poona Medical Foundation
    Ruby Hall Clinic v. Marutirao L.
    Tikare and Anr, National Commission
    and Supreme Court on 

        Consumer Cases
    1986-96 page 2656 (NS). (Para 13)

         

    Counsel for the parties:

    For the Complainant : Mr. C.
    R.Sathindran, Advocate.

     

    For the Opp. Party : None

     

    IMPORTANT POINT

     

    Wrong diagnosis and consequent
    treatment given by doctor itself
    cannot amount to negligence or
    deficiency in service.

      

    ORDER

    M. S. Janarthanam, President -
    This action has come before us for
    admission today.

        

    2. We heard arguments of
    learned Counsel Mr.C. R. Sathindran.

      

    3. We perused the avernments in
    the complaint and also the documents
    filed alongwith it.

      

    4. Such perusal reveals the
    following factors:

      

    The complainant is one V. Chandrasekar.
    On 2-8-1999 he was stated to have
    developed sever chest pain. He got
    admitted in Malar Hospital Ltd.
    (opposite party). He was admitted as
    an inpatient in the said hospital for
    a period of five days.

    As per the diagnosis, he underwent
    Coronary Angiogram on 3-8-1999. On
    5-8-1999, he underwent Coronary
    Angioplastry plus Stenting to LAD at
    the opposite party`s hospital. He was
    then discharged on 9-8-1999.

     

    He was not relieved of the pain and
    suffering even after such treatment.
    Again, he was re-admitted in the
    opposite party`s hospital on 8-9-1999.
    He was put in the ICU for a day and
    then shifted to the ward. He was
    stated to have been releived of the
    pain. Later, it was found out that the
    relief was only temporary.

     

    He had paid a sum of Rs.88,250/- for
    Angiogram and Angioplastry at the
    opposite party`s hospital. This apart,
    he also paid a sum of Rs.41,400/- as
    hospital charges for hospitalisation
    for a period between 2-8-1999 and
    9-8-1999. This apart, he had to pay a
    sum of Rs.4,096/- when he was
    re-admitted in the opposite party`s
    hospital on 8-9-1999. 

      

    Despite the treatment taken at the
    opposite party`s hospital at
    exorbitant expenses, he was not
    relieved of the pain and sufferings.
    Consequently, he was not satisfied
    with the treatment given in the said
    hospital He got admitted in Apollo
    Hospital on 3-3-2000 as he again had
    severe chest pain. There, he was
    advised to undergo by-pass surgery. As
    per the advice, he had undergone the
    by-pass surgery on 11-3-2000.

       

    5. The opposite party hospital
    refused to give the cassettes and
    photographs of the Angiogram and
    Angioplastry alongwith the report
    despite demand emerging therefore from
    him. He would say, a duty is cast upon
    the opposite party hospital to furnish
    such details. The non-functioning of
    such details, he would say, would
    tantamount to negligence or deficiency
    in service on their part. 

      

    6. The diagnosis made at the
    opposite party`s hospital, he would
    say, was wrong. The diagnosis,
    according to them, was that the
    complainant had a “Single Vessel
    Disease” whereas the diagnosis of
    the Apollo Hospital was the he had
    “Severe Triple Vessel Coronary
    Disease.” The complainant,
    therefore, would say that the
    diagnosis and treatment given at the
    opposite party`s hospital were wrong
    and consequently he had to suffer and
    get treatment again at a different
    hospital namely, Apollo Hospital.

      

    7. Because of the opposite
    party`s hospital refusal to furnish
    the cassettes, photographs of
    Angiogram, he had to suffer
    irreparable injury, mental agony and
    damages in that he had to not only
    incur expenses for the Angiogram again
    but also because of the wrong
    treatment / wrong diagnosis given by
    the opposite party he has to suffer
    injury and damages.

     

    8. He would claim the amounts
    as below from the opposite party:

      

    1. To pay the total medical expenses
    at

    opposite party`s hospital
    Rs.1,33,746.00

    2. Medical expenses at Apollo Hospital
    Rs.2,90,061.00

    3. Damage for mental agony and
    hardship Rs.2,25,000.00

    Total Rs.6,48,807.00 

       

    He would also claim interest @ 25% on
    the said amount till payment.

       

    9. The opposite party hospital,
    of course, furnished a discharge
    summary containing the details of
    investigation, diagnosis, treatment
    given besides the advice on discharge.

      

    10. From the perusal of the
    factors as above, it is thus
    abundantly crystal clear that
    according to the complainant that
    wrong diagnosis and consequent
    treatment and refusal to give
    cassettes and photographs of the
    Angiogram and Angioplastry alongwith
    the report amounts to deficiency in
    service on the part of the opposite
    party`s hospital.

          

    11. No doubt true it is as
    getting revealed from the records
    filed that the opposite party
    hospital, on diagnosis, found out that
    the complainant had Single Vessel
    Disease but on the contrary, it was
    diagnosed by the different hospital
    namely, Apollo Hospital that he had
    severe Triple Vessel Coronary Disease.
    Diagnosis is nothing but forming an
    opinion on examination of the patients
    suffering from a disease. Diagnosis
    may consist of physical as well as
    mechanical examination. Only on such
    examination, the opinion is formed as
    to the disease from which the patient
    is suffering. The opinion formed or
    diagnosed may vary from one medical
    expert to another medical expert just
    like the difference of opinion as
    expressed by the Lawyer regarding the
    factual matrix in the light of legal
    provisions. Only on the diagnosis,
    treatment is given. As respects wrong
    diagnosis and consequent treatment
    given, on occasions more than one,
    superior Forums had expressed, cannot
    at all amount to negligence or
    deficiency in service on the part of
    such professional

        

    12. The other negligence or
    deficiency in service attributed on
    the part of the opposite party
    hospital is relatable to its refusal
    to hand over the cassettes and photos
    of the Angiogram. Such refusal, we
    rather feel, would not also amount to
    deficiency in service on their part
    when especially the complainant had
    been furnished with a discharge
    summary containing the relevant
    details such as investigation,
    diagnosis, treatment given and advice
    on discharge.

       

    13. In Poona Medical Foundation
    Ruby Hall Clinic v. Marutirao L.
    Titkare & Anr. It was laid down by
    the National Commission that the
    non-supply to the complainant of the
    copies of the hospital records
    relatable to or pertaining to the
    surgical operation, can by no stretch
    of imagination to be construed as
    negligence unless there was a legal
    duty cast upon the hospital to furnish
    such documents to the complainant,
    patient. In the instant case, no
    material had been placed on record to
    point out that the complainant was
    legally entitled to have the copies of
    the document to be furnished to him.

      

    14. For the reasons as above,
    we are of the view that the factors
    getting revealed by way of averments
    incorporated in the complaint as well
    as the documents filed alongwith it do
    not at all prima facie point out any
    negligence of deficiency in service on
    the part of the opposite party
    hospital requiring further enquiry
    into the matter by taking the
    complaint on file.

        

    The complaint, as such deserves
    rejected I limine. We accordingly do
    so.

        

    Complaint dismissed.

      

  • Gare
    Devamma & Ors. v. Superintendent,
    Area Hospital & Anr.

    1997(3)
    CPJ 613 (AP SCDRC)

       

    The husband of 1st complainant
    suffered heart attack and was admitted
    in the I.C.U. of 1st opposite party on
    25.4.1993. It was alleged that due to
    negligence in treatment he died on
    4.5.1993. The State Commission held
    that from the case sheet and the
    progress note and nurses’ notes it
    was clear that proper care and
    treatment was provided. But,
    unfortunately due to second attack the
    patient died. In the absence of any
    other evidence the complaint was
    dismissed. The State Commission also
    held that the question whether the 1st
    opposite party should provide
    employment to the 1st complainant or
    otherwise is beyond the purview of the
    C.P. Act.

       

  • Sir
    Gangaram Hospital v D.P Bhandari &
    Ors.


    1992
    (2) CPJ 397 (NCDRC).

      

    It was held by the national commission
    that there was no deficiency on the
    part of the hospital in not
    transferring the patient to the ICU on
    account of non availability of vacant
    bed in the ICU and it was not
    negligence or deficiency on the part
    of the hospital merely on account of
    their omission to inform the relative
    of the patient to shift the patient to
    some other hospital if they so chose
    in view of non availability of vacant
    bed in the I.C.U.

      


         


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  • Amar Singh v.Frances Newton Hospital and Others
    2001 (1) CPR 379
        
    Consumer Protection Act. 1986- Section 15 – Medical negligence – Father of complainant admitted in hospital of opposite party – Death alleged to have been caused due to carelessness of opposite party – FIR registered - Investigating officer approached Civil surgeon for obtaining report of Board of Doctors – Death of father of complainant as per report was due to Cardio Respiratory arrest which caused to coronary Artery disease and cerbrovarcular accident – Drugs given for treatment justified – death of complainant’s father natural death being old man of eighty years - District Forum held there was not any negligence or recklessnessor departure from treatment – Dismissed complaint - Appeal  – No legal infirmity in detailed and well reason order passed by District Forum.
      
    IMPORTANT POINT :-
    The doctor when consulted by patient owes him certain duties 
    (a) a duty of care in deciding whether to undertake the case 
    (b) a duty of care in deciding what treatment to give 
    (c) a duty of care in administration of that treatment .
      
    ORDER :-
    Davinder Kaur Bhamrah, Member – This is an appeal under Section 15 of the Consumer Protection Act, 1986, against the order dated 20-11-1998 passed by the District Consumer Disputes Redressal Forum , Ferozepur, for damages was dismissed. Aggrieved by allowing the calim of the appellant to the extent of full amount as mentioned in the complaint with costs throughout.
      
    Brief facts of cases are :-
    Shanker Singh aged 80 years, father of the complainant Amar Singh , was admitted in the Frances Newton Hospital on 19-7-1996. As per allegations of the complainant , the death ofhis father carelessness of the Opposite Party No. w, against the O.P. No. 2 with the ordes of the Hon’ble Punjab and Haryana High court. It is stated that the investigation officer of police approached the Civil Surgeon , Ferozepur Ex. R-3 for obtaining the opinion of the Board of Doctors . The Civil Surgeon , Ferozepur vide Ex. r-2, the death of the father of the complainant was due to “Cardio-respiratory arrest” which caused to the “Coronary Artery disease and cerebrovarcular accident” and the drugs which were given for treatment were justified. After obtaining the said report of the Board of Doctors. The investigating Officer of police sought opinion of the D.A (Legal) Ferozepur vide Ex R-4. The Deputy D.A. (Legal) Ferozepur made his report Ex. R-5 dated 27-11-1997 vide which he opined that the treatment and medicines given to Shanker Singh, father of complainant were justified and death of Shanker Singh was natural death being an old man of 80 years and he recommended the case for cancellation.
      
    After perusing the record, the District Forum reached the conclusion recklessness or departure from accepted and establlished rules of treatment, on the complainant has badly failed to prove his case by leading any cogent and convincing evidence and dismissed the complaint .
     
    In the appeal before us , it has been stated that the death of the father of the complainant after two days of admission in the hospital with no serious allment itself goes to show that the patient died due to the utter rashness and negligence on the part of O.P. No. 2 and hence it is deficiency in rendering service and the prayer is to compensate the appelant for the amount claimed by him.
      
    The question which arises for consideration in this appeal is whether O.P. No. 2 can be held liable for any negligence in discharge of his duty as  a physician ?
      
    The patient Shanker Singh was brought to the hospital on 19-7-1996 at 5:00 p.m. with complaint of weakness of left side of body two hours prior to admission . On admission his pulse was 80/min. regular, B.P. 160./86 mm. Hg. Respiration rate 20/min. A diagnosis of cerebrovascular accident with left-side hemiparesis was made. The appropriate treatment was given and investigation were carried out. Chest X-rayshowed the consistent with age. arctic calcification was seen. ECG old anterior wall myocardial infarction with the lateral wall and apicil Ischemic changes were seen. On follow up on 20th July, 1996 , his condition was stable, he had slight fever. On 21st morning rounds general condition was stable ,he had slight fever. On 21st morning rounds genreal condition was better but there were ‘ronchi’ in chest. So injection Lasic and injection Derephyllin were ordered and given at 10:20 a.m. , the patient suffered respiratory arrest followed bu cardiac arrest. Resuscitation methods were tried but proved unsuccessful and the patient was declared dead at 10:40 a.m. The cause of death being Cardio Respiratory Arrest’ and precipitating causes mentioned as ‘ Ischaemic Heart Disease’ Cerebrovascular.
      
    The diagnosis and treatment given by the O.P. No. 2 has been challenged buy the complainant levelling allegations against him but at the same time he has not produced any evidence to prove these allegations levelled in the complainant against the O.P. No.2. No expert opinion has been produced by the complainant to contradict the report of the Board of Doctors . All medical negligence cases concern various questions of fact , when we say burden of proving negligence lies on the complainant, it means he has the task of convincing the Court that his version of
      
    The Supreme Court of India , in Dr. Laxman Bala Krishna Joshi v. Dr. Trimbak Bapu Godbole & another , has laid down that doctor when consulted by a patient owes him certain duties, namely, 
    (a) a duty of care in deciding whether to undertake the case
    (b) a duty of care in deciding what  treatment to give 
    (c) a duty of care in administration of that treatment. 
    A breach of any of these duties gives a cause of  action for negligence to the patient. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of O.P. 2 in the process of treatment of Shri Shanker Singh. the facts is the correct one.
      
    In the case in hand, there is nothing on record to prove the negligence doctor gets more strengthened by the report of the Board of the doctors and cancellation of the F.I.R lodged by the complainant.
      
    For the reasons recorded above, we do not find any legal infirmity in the detailed and well reasoned order passed by the District Forum . We can not be oblivious of the misery and mental agony caused by the frivolous and vexatious complaint to a doctor. Inexpensive remedy provided under the Consumer Protection Act to provide relief to the exploited has been exploited and the cheap remedy has been really made “cheap” by the complainant . Hence we dismiss the appeal with costs of Rs. 5000/- and the opposite parties are entitled to recover the same from the complainant in accordance with law. 
    Appeal dismissed.
        

  • RADHAKRISHNAN v. MANIKANDANUNNI
    II (2001) CPJ 167
       
    Consumer Protection Act, 1986 - Section 15 – Appeal – Negligence / Deficiency in Service – Inferior Quality of Medicine – Compensation - Opposite party sold the medicine to complainant – Complications developed on consuming the medicine - Complainant got himself admitted in Medical College – Compensation claimed – No expert evidence tendered - Complainant underwent treatment due to consuming of medicine not proved - Negligence / deficiency in service on part of opposite party not proved - Complaint rightly dismissed by Forum.
        
    Held – In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt. A13 contains nothing to connect the opposite party with the same. OPW1 denied to his having sold the said medicine. The Commission who filed Exbt. C1 report at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he infered them as the colleagues of the opposite party are not stated. A3, A5 A8, A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was an in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find that the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is no expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant , even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed. (Para 6)
      
    (ii) Ex-parte Order – Setting Aside - Jurisdiction of Forum – Suppression of opposite party`s description – Ex-parte order secured by fraud – Abuse of process of Court – Fora has jurisdiction to recall an order obtained by fraud – Ex-parte order set aside.
       
    Held : It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall an order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. 
    (Para 8 )
      
    Result : Appeal dismissed.
      
    ORDER
      
    Mr. Justice L. Manoharan, President –
    The complainant in O.P.No.186/96 on the file of the Consumer Disputes Redressal Forum, Malappuram is the hospital.
       
    2. The complainant alleged before the District Forum; he was employed as Tutor in Paramount Academy of Computer Education and since he suffered from dust allergy due in which he developed cough and obstruction in breathing. Then attracted by the notice issued by the opposite party claiming the qualities of a medicine “Swasasudarana”, he approached the opposite party who assured him that on taking the aforesaid medicine for one year his ailment would be got redressed upon which he took 20 bottles of the said medicine and on coming to know that the said medicine was banned, he again approached the opposite party who claimed, same medicine is available as `Vasakasamrutham’, believing the said representation on consuming two bottles of the said medicine he developed swelling on the tongue and feet, it became difficult for him to talk and walk, growth from the side of the eyes were also noticed. Thereupon he approached Dr.P.P. Joy and Dr.Krishnakumar who treated him at Medical College Hospital, Calicut. He was hospitalized for 12 days in the Medical College Hospital, Calicut and had to spend an amount of Rs.12000/- for treatment. Apart from financial loss he had to undergo anxiety and agony due to the said conduct and act of the opposite party. He wanted redressal.
       
    3. In the version filed by the opposite party he denied to his having supplied such medicine or advised him to take the said medicines. He is not the owner of “J.R.Consultants” mentioned in the complaint, the proprietor of which is one Rajan. He has not published any notice as is alleged. If at all the complainant sustained any injury, the opposite party is not responsible for the same and the complication for which he allegedly underwent treatment in the Medical College Hospital also was not due to his consuming any medicine supplied by the opposite party. He is not trained for treating patients. He is only a “Kazahakakaran” in a temple. He wanted dismissal of the complaint.

    4. The complainant got himself examined as P.W.2 and produced Exbts.A1 to A13, MO1 and M02, Commissioner filed Exbts.C1 and C2 reports. The opposite party was examined as OPW1. On a consideration of the said material the District Forum dismissed the complaint. The said dismissal is under challenge in this appeal.
       
    5. Learned Counsel for the appellant assailed the order of the District Forum maintaining that the District Forum did not correctly appreciate the evidence produced on behalf of the complainant and had it was approached the same in the correct perspective the Forum would have seen that actually the opposite party sold the medicine to the complainant and on consuming the same he developed complications which required him to get himself admitted in the Medical College Hospital, Calicut and undergo treatment. Yet another argument was also advanced by the learned Counsel maintaining that the setting aside of the ex-parte order dated 27th September, 1996 by the order dated 21st April, 1997 on I.A.18/96 by the District Forum was erroneous and without jurisdiction and, therefore the order on I.A.18/96 has to be ignored. Consequently the order dated 27th September, 1996 even now govern on that ground also the impugned order by the District Forum cannot be sustained. On the other hand the learned Counsel for the respondent supported the order of the District Forum pointing out that there was no material before the District Forum to show, either, the opposite party sold the medicines in question to the complainant or on consuming the same he sustained injury. In other words, according to him on both aspects, viz., the opposite party sold he medicine, and on consuming the same the complainant developed complications which required him to be hospitalized and undergo treatment there is no acceptable evidence. Apart from the same, here being no expert evidence to show that the aforesaid medicines caused the complication the complainant is not eligible for direction in his favour. As regards the order of the District Forum on I.A.18/96 it is maintained by the learned Counsel, since the said order has not been challenged, the complainant cannot questioned the same. Alternatively, it was maintained that the ex-parte order since was secured by practising fraud and abuse of process of Court, the District Forum was within its jurisdiction to re-call the said order. It is also contended that since the said order was rendered not by a Court, the infirmity, it at all any, cannot make the same absolutely void so as to be ignored.
        
    6. In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt.A13 contains nothing to connect the opposite party with the same. OPWI denied to his having sold the said medicine. The Commission who filed Exbt.C1 reports at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he inferred them as the colleagues of the opposite party are not stated. The District Forum also points out that Exbts. A3, A5, A8 A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was in in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant, even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed.
      
    7. Now, as noticed that there is another argument by the Learned Counsel for the appellant that this complaint was once allowed ex-parte by the order dated 27th September, 1996, the same came to be set aside by the order on I.A.18/96. The said order according to the Learned Counsel for the appellant being void as without jurisdiction the ex-parte order which allowed compensation must be deemed to be in force. Therefore, irrespective of the aforesaid finding on the basis of the evidence, on the strength of the said ex-parte order the second order passed by the District Forum cannot have any effect. Reliance was made by the Learned Counsel on the decision of the Supreme Court in Jyotsana Arvind Kumar Shah & Ors. V. Bombay Hospital Trust, 1999 (1) SCC 402=III (1999) CPJ 1 (SC)=VII (1999) SLT 146. In the said decision the Supreme Court holds, “State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided with any jurisdiction to set aside the ex-parte reasoned order.” It is urged by the Learned Counsel a reading of the order dated 27th September, 1996 since would show that the same is a reasoned order, the District Forum did not have the jurisdiction to set it aside. It is also urged by the Learned Counsel that I.A.18/96 was a petition seeking review of the order dated 27th September, 1996 since the Forum has no jurisdiction to review its earlier order, on that ground also the order of the District Forum is without jurisdiction. On the other hand Learned Counsel for the respondent maintained since the same is not a reasoned order the decision in Jyotsana`s case (supra) cannot have application. One cannot confuse an order on `merit’ with a “ reasoned order.” Here the reading of the order would show that though the complainant has filed an affidavit to the amount mentioned in the complaint, and directs to pay the said amount. This would show that the Forum applied its mind, appreciated the ex-parte evidence tendered and then passed the order. Therefore, it cannot be said that the same is not a reasoned order though it is an ex-parte order.
       
    8. It is true, though the petition is styled as a review petition, the contents of the petition would show that the same is simply to set aside the order passed on 27.9.1996. The petition was treated as such by the District Forum. It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the Learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall the order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. Reliance was made by the District Forum on the decision of the Supreme court in Indian Bank v. Satyam Fibers (India) Pvt.Ltd. 1996 (5) SCC 550. The Learned Counsel has another alternate argument that the order since was rendered by a `Forum’ not a effective inter-parties till the same is set aside by higher Forum. Reliance was made by the Learned Counsel on the decision of the Supreme Court in State of Kerala v. M. K. Kunhikannan Naimbiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 Supreme Court 906. Still another argument advance by the Learned Council is, in view of the decision of the Supreme Court in New India Assurance Co.Ltd. v. R. Srinivasan, (2000) 3 SCC 242-1 (2000) CPJ 19 (SC)=II (2000) SLT 520, the order on I.A.18/96 cannot be held to be without jurisdiciton.
        
    9. We may first take up the last point urged by the Learned Counsel for the opposite party as to the applicability of the decision in Sreenivasan`s case (supra). The said decision considers the jurisdiction of the Forum on the matter of restoration of a complaint dismissed for default; what is urged it, since the Supreme Court held that the Consumer Disputes Redressal Forum has inherent power and jurisdiction to restore a complaint dismissed for default provided the complainant shows good reason for non-appearance, the same principle should apply for setting aside ex-parte order also which also is rendered due to the default of the opposite party rendered due to the default of the opposite party to appear on the date to which the matter stood posted. We cannot go into the worthness of this argument, “the reasoning maintained by the Learned Counsel though may seem attractive,, as has already been noted, the Supreme Court since was held in Jyotsana`s case (supra), the Act has not provided jurisdiction to set aside ex-parte reasoned order, the Forum cannot set aside an ex-parte reasoned order. We cannot hold, since the later decision held in a matter for restoration of a complaint dismissed for default the FOR A has inherent jurisdiction to set aside ex-parte order also when there is the specific decision of the Supreme Court in Jyotsana`s case to the contrary.
        
    10. Now as to the question whether the order can be treated to have been recalled as has already been noted, in para 4 of the petition he alleges by giving the wrong description the opposite party the complainant got the ex-parte order by practising fraud. If there is suppression of the description of the opposite party and on account of the same the complainant secured an ex-parte order, having regard to the attending circumstances in a given case, the same could amount to abuse of process of Court which would enable the FORA to recall the ex-parte order. The order on I.A.18/96 is self-explanatory. It states, the notice to the opposite party initially was issued to “Mr. Unni, J.R.Consultants, Fathima Nagar, Mandoor.” The said notice was returned stating that there is no such establishment in Fathima Nagar, Mandoor and the name of the establishment is J.R. & Co. Tax Practitioners and Job Typing. The name of the owner was reported to be Manikandan Unni. Therefore, the name of the opposite party was wrong, and the name and details of the establishment also was wrong. The whole description of the opposite party thus was far from correct. Another notice sent with the particular furnished too was with incorrect description, his name was not shown in full. The service of the same notice was as “unclaimed” and it was on the strength of the said service, the opposite party was set ex-parte and the ex-parte order came to be passed. Now the name of the complainant is stated to be `Manikantanunni’. Even after getting the correct name and address of the opposite party in the complainant did not take steps to amend cause title of the complaint. The District Forum notes all these and says that the order came to-be passed with the wrong description of the opposite party; it finds therefore, the order cannot be said to be against the petitioner / opposite party. The District Forum also stated that it is doubtful whether the said order could be binding on the opposite party, observing so the District Forum sets aside the order. From the materials thus revealed it could be seen that not only the name of the opposite party / respondent was wrongly mentioned; the address of the establishment also was wrong and to crown that the service was as `unclaimed’. When such is the situation pronouncement of the ex-parte order with the wrong person in the party array stating that himself is the opposite party, in the facts and circumstances would amount to abuse of process of Court. Then the order on I.A.18/96 has to be upheld as one which recalled the ex-parte order. Now having regard to the aforesaid view taken by us it will not be necessary to go into the other question whether the said order was liable to be set aside by a higher Forum. When such is the situation the setting aside of the ex-parte.
           

  • V. Chandrasekar v. Malar Hospitals Ltd.
    2001 (1) CPR 628
       
    Consumer Protection Act, 1986 - Sections 12 and 17 – Medical negligence – Complainant underwent Coronary Angioplastry plus Stenting to LAD at opp. Party hospital but was not relieved of pain – He underwent then by-pass surgery in other hospital - Deficiency in service alleged in diagnosis and refusal on part of opp. Party to deliver the cassettes and photographs of Angiogram and Angioplastry alongwith report despite demand – Diagnosis made at opp. Party hospital was that complainant had a “Single Vessel Disease” whereas diagnosis made at other hospital was “Severe Triple Vessel Coronary Disease” – Wrong diagnosis and consequent treatment itself could not amount to negligence or deficiency in service – Complainant had been provided discharge summary providing all details – Non return of cassettes, photographs did not amount to deficiency in service.
    (Paras 11 to 14)
      
    Result : Complaint dismissed
      
    Case referred:
    1. Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Tikare and Anr, National Commission and Supreme Court on 
        Consumer Cases 1986-96 page 2656 (NS). (Para 13)
         
    Counsel for the parties:
    For the Complainant : Mr. C. R.Sathindran, Advocate.
     
    For the Opp. Party : None
     
    IMPORTANT POINT
     
    Wrong diagnosis and consequent treatment given by doctor itself cannot amount to negligence or deficiency in service.
      
    ORDER
    M. S. Janarthanam, President - This action has come before us for admission today.
        
    2. We heard arguments of learned Counsel Mr.C. R. Sathindran.
      
    3. We perused the avernments in the complaint and also the documents filed alongwith it.
      
    4. Such perusal reveals the following factors:
      
    The complainant is one V. Chandrasekar. On 2-8-1999 he was stated to have developed sever chest pain. He got admitted in Malar Hospital Ltd. (opposite party). He was admitted as an inpatient in the said hospital for a period of five days.
    As per the diagnosis, he underwent Coronary Angiogram on 3-8-1999. On 5-8-1999, he underwent Coronary Angioplastry plus Stenting to LAD at the opposite party`s hospital. He was then discharged on 9-8-1999.
     
    He was not relieved of the pain and suffering even after such treatment. Again, he was re-admitted in the opposite party`s hospital on 8-9-1999. He was put in the ICU for a day and then shifted to the ward. He was stated to have been releived of the pain. Later, it was found out that the relief was only temporary.
     
    He had paid a sum of Rs.88,250/- for Angiogram and Angioplastry at the opposite party`s hospital. This apart, he also paid a sum of Rs.41,400/- as hospital charges for hospitalisation for a period between 2-8-1999 and 9-8-1999. This apart, he had to pay a sum of Rs.4,096/- when he was re-admitted in the opposite party`s hospital on 8-9-1999. 
      
    Despite the treatment taken at the opposite party`s hospital at exorbitant expenses, he was not relieved of the pain and sufferings. Consequently, he was not satisfied with the treatment given in the said hospital He got admitted in Apollo Hospital on 3-3-2000 as he again had severe chest pain. There, he was advised to undergo by-pass surgery. As per the advice, he had undergone the by-pass surgery on 11-3-2000.
       
    5. The opposite party hospital refused to give the cassettes and photographs of the Angiogram and Angioplastry alongwith the report despite demand emerging therefore from him. He would say, a duty is cast upon the opposite party hospital to furnish such details. The non-functioning of such details, he would say, would tantamount to negligence or deficiency in service on their part. 
      
    6. The diagnosis made at the opposite party`s hospital, he would say, was wrong. The diagnosis, according to them, was that the complainant had a “Single Vessel Disease” whereas the diagnosis of the Apollo Hospital was the he had “Severe Triple Vessel Coronary Disease.” The complainant, therefore, would say that the diagnosis and treatment given at the opposite party`s hospital were wrong and consequently he had to suffer and get treatment again at a different hospital namely, Apollo Hospital.
      
    7. Because of the opposite party`s hospital refusal to furnish the cassettes, photographs of Angiogram, he had to suffer irreparable injury, mental agony and damages in that he had to not only incur expenses for the Angiogram again but also because of the wrong treatment / wrong diagnosis given by the opposite party he has to suffer injury and damages.
     
    8. He would claim the amounts as below from the opposite party:
      
    1. To pay the total medical expenses at
    opposite party`s hospital Rs.1,33,746.00
    2. Medical expenses at Apollo Hospital Rs.2,90,061.00
    3. Damage for mental agony and hardship Rs.2,25,000.00
    Total Rs.6,48,807.00 
       
    He would also claim interest @ 25% on the said amount till payment.
       
    9. The opposite party hospital, of course, furnished a discharge summary containing the details of investigation, diagnosis, treatment given besides the advice on discharge.
      
    10. From the perusal of the factors as above, it is thus abundantly crystal clear that according to the complainant that wrong diagnosis and consequent treatment and refusal to give cassettes and photographs of the Angiogram and Angioplastry alongwith the report amounts to deficiency in service on the part of the opposite party`s hospital.
          
    11. No doubt true it is as getting revealed from the records filed that the opposite party hospital, on diagnosis, found out that the complainant had Single Vessel Disease but on the contrary, it was diagnosed by the different hospital namely, Apollo Hospital that he had severe Triple Vessel Coronary Disease. Diagnosis is nothing but forming an opinion on examination of the patients suffering from a disease. Diagnosis may consist of physical as well as mechanical examination. Only on such examination, the opinion is formed as to the disease from which the patient is suffering. The opinion formed or diagnosed may vary from one medical expert to another medical expert just like the difference of opinion as expressed by the Lawyer regarding the factual matrix in the light of legal provisions. Only on the diagnosis, treatment is given. As respects wrong diagnosis and consequent treatment given, on occasions more than one, superior Forums had expressed, cannot at all amount to negligence or deficiency in service on the part of such professional
        
    12. The other negligence or deficiency in service attributed on the part of the opposite party hospital is relatable to its refusal to hand over the cassettes and photos of the Angiogram. Such refusal, we rather feel, would not also amount to deficiency in service on their part when especially the complainant had been furnished with a discharge summary containing the relevant details such as investigation, diagnosis, treatment given and advice on discharge.
       
    13. In Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Titkare & Anr. It was laid down by the National Commission that the non-supply to the complainant of the copies of the hospital records relatable to or pertaining to the surgical operation, can by no stretch of imagination to be construed as negligence unless there was a legal duty cast upon the hospital to furnish such documents to the complainant, patient. In the instant case, no material had been placed on record to point out that the complainant was legally entitled to have the copies of the document to be furnished to him.
      
    14. For the reasons as above, we are of the view that the factors getting revealed by way of averments incorporated in the complaint as well as the documents filed alongwith it do not at all prima facie point out any negligence of deficiency in service on the part of the opposite party hospital requiring further enquiry into the matter by taking the complaint on file.
        
    The complaint, as such deserves rejected I limine. We accordingly do so.
        
    Complaint dismissed.
      

  • Gare Devamma & Ors. v. Superintendent, Area Hospital & Anr.
    1997(3) CPJ 613 (AP SCDRC)
       
    The husband of 1st complainant suffered heart attack and was admitted in the I.C.U. of 1st opposite party on 25.4.1993. It was alleged that due to negligence in treatment he died on 4.5.1993. The State Commission held that from the case sheet and the progress note and nurses’ notes it was clear that proper care and treatment was provided. But, unfortunately due to second attack the patient died. In the absence of any other evidence the complaint was dismissed. The State Commission also held that the question whether the 1st opposite party should provide employment to the 1st complainant or otherwise is beyond the purview of the C.P. Act.
       

  • Sir Gangaram Hospital v D.P Bhandari & Ors.
    1992 (2) CPJ 397 (NCDRC).
      
    It was held by the national commission that there was no deficiency on the part of the hospital in not transferring the patient to the ICU on account of non availability of vacant bed in the ICU and it was not negligence or deficiency on the part of the hospital merely on account of their omission to inform the relative of the patient to shift the patient to some other hospital if they so chose in view of non availability of vacant bed in the I.C.U.
      

         

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By |2022-07-20T16:42:35+00:00July 20, 2022|Uncategorized|Comments Off on Doctor’s Favour / Cardiologist

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