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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.

           

  • SMT.
    SUPRITI MODAK v. DR. GOKUL CH MODAK


    II (2001) CPJ 219

     

    WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMISSION,
    CALCUTTA


     

    Consumer Protection Act, 1986 – Section 15 – Appeal -
    Medical Negligence – Blood report of baby conducted thrice
    at different pathological laboratories, results showed
    different reading of bilirubin – Negligence alleged on part
    of physician and pathological laboratories – Dispute
    involved consideration of voluminous evidence – Forum
    declined to exercise jurisdiction – Order of Forum upheld in
    appeal.

     

    Result : Appeal dismissed.

     

    Order

      

    Mr. Justice S.C. Datta, President – This appeal is directed
    against order dated 30.4.1999 whereby the Forum declined to
    exercise jurisdiction vested in it in the matter of trial of
    the case. The forum was of opinion that the resolution of
    the dispute between the parties involves consideration of
    voluminous evidence and evidence of experts in the
    respective fields. The Forum noticed that the first question
    to be determined was whether the caesarean operation was
    necessary or not. During hearing it transpires that the baby
    was born by caesarean operation and there was definite
    allegation about negligence on the part of the attending
    physician and pathological laboratories in the matter of
    treatment of the baby. It is accepted that blood report of
    the baby was conducted thrice at different pathological
    laboratories and the results showed different readings of
    bilirubin. Ultimately, the baby was shifted to NRS Hospital
    at Calcutta whereby the grace of God the disease was
    properly diagnosed and the baby was cured. The Forum noticed
    that in order to prove the allegations regarding negligence
    on the part of the opposite parties, quite a few witnesses
    were required to be examined and these witnesses include
    Medical/Gynaecological/Pathological/ experts. The Forum
    declined to adjudicate the dispute relying on the ratio of
    decision of the Hon’ble Supreme Court reported in AIR 1996
    SC 550. We have considered the submissions of the learned
    Counsels for the parties and examined the impugned judgement.
    We find that the Forum was perfectly justified in not
    entertaining the dispute. For the reasons aforesaid, we
    decline to entertain the appeal. The appeal be dismissed.
    The petitioner may seek remedy before the appropriate Forum,
    if so advised.

        

    Appeal dismissed.

         

  • Bhajan
    Lal Gupta & Anr. v. Mool Chand 
    Kharati Ram Hospital & Ors.


    2000(1)
    CPR 70 (NC)

       

    More
    Details      Click
    Here


        

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


    1992
    (2) CPJ 397 (NCDRC).

       

    More
    Details      Click
    Here


        

  • Shubh
    Lata v. Christian Medical College


    1
    1995(1)CPJ 165(Punjab) SCDRC

       

    More
    Details      Click
    Here


        

  • Kashi
    Ram Bhim Rao Kamble v. Dr. Udaya A.
    Patil & Anr



    1998
    (3) CPJ 614 (Mah SCDRC)

     

    the complainant’s wife aged 45 years
    was given ampicillin tablets and some
    other treatment. She developed some
    eye trouble for which she was referred
    to opposite party No. 1, an
    eye-surgeon. He prescribed some
    treatment but she developed rash and
    swelling on her face and eye-lids. As
    her condition deteriorated she was
    shifted to Wanless Hospital where she
    died after 4 days. It was alleged that
    the opposite parties gave wrong
    treatment and administered anti-biotics
    (ampicillin in this case) without
    giving a test dose and this had
    resulted in development of severe drug
    reaction known as Steven Johnson
    Syndrome (SJS) which led to peeling
    off 7% of her skin, septicemia and
    death.

      

    The State Commission upheld the
    decision of the District Forum and
    found no negligence on the following
    grounds:

      

    · patient was a regular patient of
    opposite party No.2 and there had
    never been any instance of drug
    allergy, therefore there was no reason
    to support that amplicin would cause
    her allergy.

      

    · he had referred the patient to
    eye-surgeon in time;

     

    · the eye-surgeon prescribed
    medicines only for eye-ailment for a
    short while

     

    · dermatologist was engaged to treat
    her skin condition;

      

    · she was taken away to Wanless
    Hospital without any justifiable
    cause;

        

  • Mappooyan
    v. Dr. Premavathy Elango


    1991
    (2) CPR 460 (TN SCDRC).

      

    Wife of the complainant from a doctor
    who was a family friend. The doctor
    administered some test injection
    following which the patient fell
    unconscious and subsequently died. It
    was held by the State Commission,
    since the doctor gave the treatment
    free of charge, the patient was not a
    consumer and the complaint is outside
    the purview of the Consumer Protection
    Act.

       

  • A.
    K. Pias v. Karithas Hospital


    1992
    (1) CPJ 182 (Kerala SCDRC)

      

    The complainant’s brother was bitten
    by a poisonous cobra, and was admitted
    to the opposite party hospital, where
    he died. It was alleged that the death
    was due to negligent treatment. After
    giving sufficient opportunity to
    examine witness, the State Commission
    disposed of the case of on the basis
    of materials on record, and held that
    there was no negligence in treatment.
    Complaint dismissed.

       

  • SAMAR
    NATH MUKHERJEE v. DR. SAROH GHOSH


    West
    Bengal State Consumer Disputes
    Redressal Commission, Calcutta III
    (2000) CPJ 216

      

    (i) Consumer Protection Act, 1986 -
    Section 2(1)(d)(ii) – Medical
    Negligence – Consumer – Services
    Rendered Free of Charge cannot be
    Regarded as Services and Complainant
    cannot be Regarded as Consumer -
    Petitioner, Medical Practitioner for
    more than 17 years of practice – His
    wife developed respiratory trouble -
    ECG report indicated development of
    Sinus Tachychordia – Deceased admitted
    in cabin of Nursing Home – Petitioner
    personally examined his wife and
    observed persistence of respiratory
    trouble – Next day deceased was
    declared dead – Complainant simply
    stated mode of treatment was highly
    irregular and deviating from norm of
    medical practice leading to death of
    his wife – Rendering of any service
    free of charge cannot be regarded as
    Service free of charge cannot be
    regarded as service free of charge
    cannot be regarded as service -
    Complainant has not produced any scrap
    of paper to show payment of amount to
    attending physicians – Petitioner
    cannot by regarded as consumer.

         

  • Dr.
    JOSLIN CHRYSOSTOM v. S. LOURDU


    III (2001) CPJ 126

    TAMILNADU STATE CONSUMER DISPUTES
    REDRESSAL COMMISSION, CHENNAI

        

    Consumer Protection Act, 1986 -
    Sections 2(1)(g), 14(1)(d) – Medical
    Services – Complainant assaulted by
    enemies, admitted in Government
    Hospital – Certificate and other
    particulars regarding treatment not
    given – Forum awarded compensation -
    Hence appeal – Complainant legally
    entitled to have the copies of
    documents, not proved – No material
    regarding payment of hospital charges
    produced – Complainant demanded
    treatment certificate for prosecuting
    her assailants in Criminal Court -
    Complaint frivolous, order of Forum
    set aside – Complainant liable to pay
    cost.

       

    Held : The complainant, it appears not
    satisfied with the treatment meted out
    by the Government Headquarters
    Hospital, Nagercoil, approached the
    opposite party, doctor, for taking
    treatment. She would state in the
    complaint in a flamboyant style that
    she was admitted as an inpatient in
    the hospital for pretty long period,
    that is to say, from 28.11.1992 till
    17.12.1992 after expanding a huge
    amount. She would also further claim
    that on the advice of the Hospital
    Authorities, x-ray and scan were taken
    by spending huge amount. For such
    hyperbole statements, no material
    worth the name in the shape of
    document for the payment of charges to
    the opposite party hospital had been
    placed on record by way of exhibits.
    No material worth the name had also
    been place on record that x-ray and
    scan were taken on the advice of the
    opposite party Hospital Authorities.
    If really, the complainant was
    subjected to the x-ray and scan either
    by the opposite party Hospital
    Authority or different centre on the
    advice of the opposite party Hospital
    Authority, she could have had the
    necessary receipt for the payment of
    charges for such x-ray and scan or the
    medical prescription given by the
    opposite party doctor for taking x-ray
    and scan in some other hospital. No
    material worth the name had been filed
    on record on such aspect of the matter
    by way of marking certain exhibits. It
    appears that the complainant was
    desirous of prosecuting her assailants
    in a Criminal Court as if they had
    caused on her some serious injuries
    and for which course she appears to
    have demanded from the opposite party
    doctor for the issuance of a
    certificate. At this juncture, we may
    reiterate for hte sake of emphasis
    that the Government Headquarters
    Hospital, Nagercoil, found on her
    present no external injuries at all
    and she simply complained of certain
    pain over her body to the said
    hospital while she was admitted in the
    hospital on a police memo. The
    launching of a complaint as against
    the opposite party doctor, on the
    facts and in the circumstances of the
    case, cant be anyone other than
    blackmailing the opposite party
    doctor. The act of the complainant in
    launching a complaint as against the
    opposite party doctor for the refusal
    to issue a certificate and other
    particulars of treatment he had given
    to the complainant when especially
    there is no obligation caused on him
    to do so, would definitely tantamount
    to institution of a complaint as
    against the opposite party doctor
    either frivolously or vexatiously. 
    (Para 14)

       

    Result : Appeal allowed.

       

    ORDER

       

    Thiru Justice M.S. Janarthanam,
    President – This appeal is directed
    against the order dated 10.2.1997 in
    O.P. No. 137/93 on the file of the
    District Consumer Disputes Redressal
    Forum, Nagercoil.

       

    2. The appellant is the opposite party
    while the respondent is the
    complainant.

      

    3. The complainant, it appears, was
    assaulted by her enemies on 26.11.1992
    at 6 p.m. near her house. She reported
    the matter to Nesamani Nagar Police
    Station. The station House Officer (S.H.O)
    on the Police Station issued a memo
    for the treatment of her injuries
    alleged to have been sustained in the
    occurrence. She was admitted in the
    Government Headquarters Hospital on
    the Police Memo as an inpatient and
    eventually got discharged on
    28.11.1992. The Government
    Headquarters Hospital, Nagercoil
    issued a certificate to the following
    effect : 

      

     ” Pain Abdomen,

        Bodily Pain,

        No external
    injuries

        Opinion : injury
    simple. “

       

    Thereafter, it appears, she took
    treatment from the opposite party,
    doctor. She would claim that she was
    there as an inpatient for sometime.
    During her stay there, she had
    taken x-ray and scan. She would also
    allege that she spent a huge amount
    for the stay in the hospital as an
    inpatient. When she was discharged
    from the hospital, she prayed for a
    certificate and particulars of
    treatment to which the opposite party,
    doctor, refused to issue. She would
    state that the act of the opposite
    party, doctor, in refusing to issue
    the certificate and other particulars
    of treatment given to her in the said
    hospital would amount to deficiency in
    service on his part. For such
    deficiency in service, she claims
    compensation in a sum of Rs. 50,000/-.

      

    4. The opposite party doctor in pith
    and substance would contend that she
    was not at all admitted in their
    hospital as an inpatient. She took
    treatment as an outpatient for a
    specified period. There is no
    deficiency in service on their part.
    To say that x-ray and scan report has
    been taken is shorn of the reality of
    the situation. The complaint is liable
    to be dismissed as such.

      

    5. The Forum below after taking into
    consideration the materials placed on
    record recorded a finding that the
    refusal on the part of the opposite
    party hospital to issue certificate
    and the particulars of treatment given
    to her would tantamount to deficiency
    in service and ultimately directed to
    opposite party to pay a sum of Rs.
    5,000/- by the way of compensation
    besides cost of Rs. 500/-

       

    6.  Aggrieved by the order as
    above, the opposite party resorted to
    the present action by engaging a
    Counsel of their choice namely learned Counsel
    Mr. C. Godwin.

      

    7  On service of process, the
    respondent/complainant entered
    appearance through a counsel of her
    choice namely learned Counsel M.
    Richard Dass.

       

    8.  Whether the arguments of
    learned Counsel Mr. D. Yesa,
    representing learned Counsel Mr. C.
    Godwin, appearing for the appellant
    and learned Counsel Mr. M. Richard
    Dass, Appearing for the
    respondent/complainant.

      

    9.  From the pith and substance
    of the submissions of respective
    learned Counsel appearing for the
    parties, the points as below emerge of
    consideration.

       

      (1)  Whether the order of
    the Forum below is sustainable in law,
    on the facts and in the circumstances
    of the case ?

       

      (2)  If for any reason,
    this Commission comes to the
    conclusion that the order of the Forum
    below is not sustainable in law, on
    the facts and in the circumstances of
    the case, and the complain, as filed,
    ought to have dismissed, is it
    permissible for this Commission, on
    the facts and in the circumstances of
    the case, to record a finding that the
    complaint, as instituted, is a
    frivolous or vexatious thereby
    mulcting liability on the complainant
    to pay cost in a reasonable sum to the
    opposite party?

       

    10.  Point No. 1 : The gravamen
    of the accusation as hurled by the
    complainant as against the opposite
    party doctor would tantamount to
    deficiency in service on his part. The
    Forum below affixed its seal of
    approval to such a hue of view as
    projected by the complainant. The
    Forum below, while recording such a
    finding, we are of the view, was
    rather oblivious of the legal position
    as of obtaining now and perhaps was
    the reason for the Forum below to have
    rendered such a finding.

       

    11.  Pertinent it is at this
    juncture to refer to a decision
    emerging from the National Commission
    in the case of Poona Medical,
    Foundation v. Maruttrao L. Tikare
    & Anr. I(1995) CPJ 232 (NC)=1995
    (1) CPR P. 661. In that case, the
    question that arose for consideration
    was as to whether the non-furnishing
    of the medical papers of the hospital
    would amount to deficiency in service
    on the part of the hospital. The
    National Commission considered the
    question and answered the same in the
    negative. While doing so, what the
    National Commission observed is
    relevant and such aspect of the matter
    is getting reflected in paragraph 4 at
    page 662 which runs as under :

       

    ” 1. We find that there is merit
    in the challenge raised by the
    appellant against the award of Rs.
    10,000/- as Compensation on the ground
    that failure on the part of the
    appellant to supply to the complainant
    copies of the hospital records
    pertaining to the surgical operation
    performed on the complainant
    constitutes “negligence”.
    There can be no question of negligence
    by reason of such failure to supply
    the papers unless there was a legal
    duty cast on the hospital to furnish
    such documents to a patients. The
    appellant hospital had duly given to
    the complainant at the time of his
    discharge, the discharge card and slip
    and also a case sheet wherein the
    particulars of the diagnosis and the
    treatment administered to him had been
    mentioned. No material has been placed
    before us to show that either by law
    or by convention or by practice there
    was any obligation on the part of the
    hospital to furnish to the patient
    full particulars of the surgical
    operation performed on him. It has
    also to be stated in this context that
    there was no arrangement of hiring of
    the service of the hospital by the
    complainant for consideration with
    respect to the demand made by the
    complainant on the hospital for being
    furnished, such particulars and papers
    relating to the operation. Hence, we
    do not find it possible to uphold the
    view expressed by the State Commission
    that that failure on the part of the
    appellant hospital to accede to the
    request of the complainant for being
    furnished all the papers relating to
    his surgical operation and treatment
    constituted “negligence” and
    “deficiency ins service”
    within the meaning of those
    expressions as defined in the
    Consumers Protection Act. We
    accordingly set aside the order of the
    State Commission is so far as it has
    awarded Rs. 10,000/- as compensation
    to the complainant on this
    count.”

      

    12.  The decision of the National
    Commission is applicable in all fours
    to the facts of the instant case. No
    materials worth the name in the
    instant case had been placed on record
    to point out that the complainant was
    legally entitled to have the copies of
    the documents to be furnished to her.
    In this view of the matter, there is
    no other go for us to reverse the
    finding of the forum below on this
    aspect of the matter and we
    accordingly do so. In this view of the
    matter, it cannot at all be stated
    that the order of the forum below is
    sustainable in law. We answer the
    point No. 1 accordingly.

       

    13.  Point No 2. : The sequence
    of events or incidents that took place
    in the alleged treatment of the
    injuries sustained by the complainant
    both by the Government Headquarters
    Hospital at Nagercoil and the
    treatment given by the doctor of the
    opposite party hospital, if related,
    would enable us to arrive at a just
    conclusion in recording a finding on
    this point. Even according to the
    complainant, she was assaulted by her
    enemies on 26.11.1992 at 6 p.m. near
    her house and she reported the matter
    to Nesamani Nagar Police Station. The
    SHO of the Police Station referred her
    to the Government Hospital for the
    injuries alleged to have been
    sustained by her in the occurrence.
    The Government Headquarters Hospital,
    it appears, admitted her in the
    hospital on the basis of the police
    memo and subsequently discharge her on
    28.11.1992. while discharging her from
    the hospital, it was found that except
    that fact that she complained of
    certain pain on her abdomen and other
    parts of her body, no external injury
    was found on her body. The hospital,
    further opined that the injury is
    simple.

       

    14.  The complainant, it appears,
    not satisfied with the treatment meted
    out by the Government Headquarters
    Hospital, Nagercoil, approached the
    opposite party, doctor, for taking
    treatment. She would state in the
    complaint in a flamboyant style that
    she was admitted as an inpatient in
    the hospital for pretty long period,
    that is to say, from 28.11.1992 till
    17.12.1992 after expanding a huge
    amount. She would also further claim
    that on the advice of the Hospital
    Authorities, X-ray and scan were taken
    by spending huge amount. For such
    hyperbole statements of charges to the
    opposite party doctor either
    frivolously or veraciously.

        

    15.  In view of our finding on
    point No. 1, it goes without saying
    that the appeal has to be necessarily
    allowed and the complaint as
    instituted by the complaint as
    instituted by the complainant against
    the opposite party doctor to be
    dismissed  

       

    16.  This commission in a Forum
    of first appeal. The appeal before
    this Commission is a continuation of
    the original proceeding. Such being
    the case, the Commission, as an
    Appellate Forum, is having almost all
    the powers of a Forum of first
    instance, namely the Forum below to
    sift, scan and analyse the material
    placed on record as a Forum of first
    instance and come to the conclusion of
    its own, of course, for different
    reasons. Thus, we possessed of the
    powers of the Forum of first instance.
    Once we come to the conclusion that
    the complaint as instituted by the
    complainant against the opposite party
    doctor is either frivolous or
    vexatious, it goes without saying that
    the complainant can be mulcted with
    the liability on the dismissal of the
    complaint on the ground of the same
    being frivolous or vexatious for
    payment of cost in a sum not exceeding
    Rs. 10,000/- as had been provided in
    Section 26 of the Consumer Protection
    Act, 1986 [ for short “the
    Act” ]. On the facts and in the
    circumstances of the case, we rather
    feel that if the complainant is
    directed to pay to the opposite party
    doctor a sum of Rs. 1,000/- by way of
    cost of the institution of such
    frivolous or vexatious complaint, it
    won’t beside justice. We accordingly
    do so :

       

    17.  In fine, the appeal is
    allowed; the order of the Forum below
    is set aside and the complaint itself
    is dismissed. We direct the complaint
    to pay to the opposite party doctor a
    sum of Rs. 1,000/- by way of cost for
    the institution of a frivolous or
    vexatious complaint as against the
    said doctor. This amount of Rs 1,000/-
    is to be paid within a month from the
    date of our order or otherwise this
    amount of Rs. 1,000/- will carry
    interest @ 12% p.a. till realisation.
    We however make no order as to cost in
    this appeal. The order of ours as
    above is required to be compiled with
    by the complainant within a month from
    the date of receipt of our order or
    otherwise the opposite party doctor is
    entitled to invoke the provisions of
    Section 27 of the Act.

       

  • Kashiram
    Bhimarao Kamble v. Dr. Uday A. Paul
    & Anr.


    2001 (3) CPR 117 (NC)

      

    Consumer Protection Act, 1986 -
    Sections 12 and 17 – Medical
    Negligence – Death of wife of
    complainant while she was under
    treatment of respondent opposite
    parties – Allegation that respondent
    doctor knew that patient was allergic
    to penicillin and yet doctor
    administered ampicillin and oral
    cosavil, cephalosposin resulting in
    steven Jones syndrome and ultimate
    death – Doctor’s evidence that he was
    the family doctor of complainant and
    had on many occassions administered
    ampicillin to patient – Doctor
    examined by complainant admitted that
    treatment given to wife of
    complainant was proper – Cocurrent
    findings that there was no negligence
    on part of respondents – Not a fit
    case for interference in revisional
    jurisdiction.    (Para
    3 and 4)

      

    Result : Revision dismissed.

      


    ORDER


      

    D.P. Wadhwa, President – Complainant
    is the petitioner before us. He
    complained of medical negligence and
    thus deficiency in service by the
    respondents who are two in number.
    Both are medical practitioners.
    Allegation is that because of
    negligence on the part of the
    respondents, the wife of the
    petitioner who was under their
    treatment died. There is a claim for
    damages on that account.

      

    2. District Forum after elaborate
    enquiry held that there is no
    deficiency on the part of the
    respondents and dismissed the
    complaint. Petitioner went in appeal
    before the State Commission which
    upheld the order of the District Forum
    and dismissed the appeal.

      

    3. Aggrieved, petitioner has come
    before this Commission. It is
    submitted by the Ms. Lalita Kohli,
    counsel for the petitioner that the
    second respondent Dr. Kulkarni knew
    that wife of the complainant was
    allergic to penicillin and yet when
    she was under his treatment, he
    administered ampicillin and oral
    cosavil, cephalosporin, resulting in
    the patient steven-jones syndrome and
    ultimate death. Admittedly penicillin
    is administered in various forms. Dr.
    Kulkarni has stated that he is the
    family doctor of the complainant and
    he had on many occasions administered
    ampicillin to the wife of the
    complainant and she did not develop
    any adverse reaction and was never
    allergic to that. Complainant in
    support of his case examined two
    medical doctors namely Dr. Shahpurkar,
    Dr. Chadda, and Dr. Takale and they
    said that the treatment given to the
    wife of the complainant was proper in
    the circumstances of the case.

      

    4. In view of the concurrent finding
    of fact that there was no negligence
    on the part of any of the respondents,
    we do not find it is a fit case for us
    to exercise our jurisdiction under
    clause (b) of Section 21 of the
    Consumer Protection Act. This revision
    petition is dismissed.

      

    Revision dismissed.

         


         


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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.
           

  • SMT. SUPRITI MODAK v. DR. GOKUL CH MODAK
    II (2001) CPJ 219
     
    WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMISSION, CALCUTTA
     
    Consumer Protection Act, 1986 – Section 15 – Appeal - Medical Negligence – Blood report of baby conducted thrice at different pathological laboratories, results showed different reading of bilirubin – Negligence alleged on part of physician and pathological laboratories – Dispute involved consideration of voluminous evidence – Forum declined to exercise jurisdiction – Order of Forum upheld in appeal.
     
    Result : Appeal dismissed.
     
    Order
      
    Mr. Justice S.C. Datta, President – This appeal is directed against order dated 30.4.1999 whereby the Forum declined to exercise jurisdiction vested in it in the matter of trial of the case. The forum was of opinion that the resolution of the dispute between the parties involves consideration of voluminous evidence and evidence of experts in the respective fields. The Forum noticed that the first question to be determined was whether the caesarean operation was necessary or not. During hearing it transpires that the baby was born by caesarean operation and there was definite allegation about negligence on the part of the attending physician and pathological laboratories in the matter of treatment of the baby. It is accepted that blood report of the baby was conducted thrice at different pathological laboratories and the results showed different readings of bilirubin. Ultimately, the baby was shifted to NRS Hospital at Calcutta whereby the grace of God the disease was properly diagnosed and the baby was cured. The Forum noticed that in order to prove the allegations regarding negligence on the part of the opposite parties, quite a few witnesses were required to be examined and these witnesses include Medical/Gynaecological/Pathological/ experts. The Forum declined to adjudicate the dispute relying on the ratio of decision of the Hon’ble Supreme Court reported in AIR 1996 SC 550. We have considered the submissions of the learned Counsels for the parties and examined the impugned judgement. We find that the Forum was perfectly justified in not entertaining the dispute. For the reasons aforesaid, we decline to entertain the appeal. The appeal be dismissed. The petitioner may seek remedy before the appropriate Forum, if so advised.
        
    Appeal dismissed.
         

  • Bhajan Lal Gupta & Anr. v. Mool Chand  Kharati Ram Hospital & Ors.
    2000(1) CPR 70 (NC)
       
    More Details      Click Here
        

  • Sir Gangaram Hospital v D.P Bhandari & Ors.
    1992 (2) CPJ 397 (NCDRC).
       
    More Details      Click Here
        

  • Shubh Lata v. Christian Medical College
    1 1995(1)CPJ 165(Punjab) SCDRC
       
    More Details      Click Here
        

  • Kashi Ram Bhim Rao Kamble v. Dr. Udaya A. Patil & Anr
    1998 (3) CPJ 614 (Mah SCDRC)
     
    the complainant’s wife aged 45 years was given ampicillin tablets and some other treatment. She developed some eye trouble for which she was referred to opposite party No. 1, an eye-surgeon. He prescribed some treatment but she developed rash and swelling on her face and eye-lids. As her condition deteriorated she was shifted to Wanless Hospital where she died after 4 days. It was alleged that the opposite parties gave wrong treatment and administered anti-biotics (ampicillin in this case) without giving a test dose and this had resulted in development of severe drug reaction known as Steven Johnson Syndrome (SJS) which led to peeling off 7% of her skin, septicemia and death.
      
    The State Commission upheld the decision of the District Forum and found no negligence on the following grounds:
      
    · patient was a regular patient of opposite party No.2 and there had never been any instance of drug allergy, therefore there was no reason to support that amplicin would cause her allergy.
      
    · he had referred the patient to eye-surgeon in time;
     
    · the eye-surgeon prescribed medicines only for eye-ailment for a short while
     
    · dermatologist was engaged to treat her skin condition;
      
    · she was taken away to Wanless Hospital without any justifiable cause;
        

  • Mappooyan v. Dr. Premavathy Elango
    1991 (2) CPR 460 (TN SCDRC).
      
    Wife of the complainant from a doctor who was a family friend. The doctor administered some test injection following which the patient fell unconscious and subsequently died. It was held by the State Commission, since the doctor gave the treatment free of charge, the patient was not a consumer and the complaint is outside the purview of the Consumer Protection Act.
       

  • A. K. Pias v. Karithas Hospital
    1992 (1) CPJ 182 (Kerala SCDRC)
      
    The complainant’s brother was bitten by a poisonous cobra, and was admitted to the opposite party hospital, where he died. It was alleged that the death was due to negligent treatment. After giving sufficient opportunity to examine witness, the State Commission disposed of the case of on the basis of materials on record, and held that there was no negligence in treatment. Complaint dismissed.
       

  • SAMAR NATH MUKHERJEE v. DR. SAROH GHOSH
    West Bengal State Consumer Disputes Redressal Commission, Calcutta III (2000) CPJ 216
      
    (i) Consumer Protection Act, 1986 - Section 2(1)(d)(ii) – Medical Negligence – Consumer – Services Rendered Free of Charge cannot be Regarded as Services and Complainant cannot be Regarded as Consumer - Petitioner, Medical Practitioner for more than 17 years of practice – His wife developed respiratory trouble - ECG report indicated development of Sinus Tachychordia – Deceased admitted in cabin of Nursing Home – Petitioner personally examined his wife and observed persistence of respiratory trouble – Next day deceased was declared dead – Complainant simply stated mode of treatment was highly irregular and deviating from norm of medical practice leading to death of his wife – Rendering of any service free of charge cannot be regarded as Service free of charge cannot be regarded as service free of charge cannot be regarded as service - Complainant has not produced any scrap of paper to show payment of amount to attending physicians – Petitioner cannot by regarded as consumer.
         

  • Dr. JOSLIN CHRYSOSTOM v. S. LOURDU
    III (2001) CPJ 126
    TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
        
    Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d) – Medical Services – Complainant assaulted by enemies, admitted in Government Hospital – Certificate and other particulars regarding treatment not given – Forum awarded compensation - Hence appeal – Complainant legally entitled to have the copies of documents, not proved – No material regarding payment of hospital charges produced – Complainant demanded treatment certificate for prosecuting her assailants in Criminal Court - Complaint frivolous, order of Forum set aside – Complainant liable to pay cost.
       
    Held : The complainant, it appears not satisfied with the treatment meted out by the Government Headquarters Hospital, Nagercoil, approached the opposite party, doctor, for taking treatment. She would state in the complaint in a flamboyant style that she was admitted as an inpatient in the hospital for pretty long period, that is to say, from 28.11.1992 till 17.12.1992 after expanding a huge amount. She would also further claim that on the advice of the Hospital Authorities, x-ray and scan were taken by spending huge amount. For such hyperbole statements, no material worth the name in the shape of document for the payment of charges to the opposite party hospital had been placed on record by way of exhibits. No material worth the name had also been place on record that x-ray and scan were taken on the advice of the opposite party Hospital Authorities. If really, the complainant was subjected to the x-ray and scan either by the opposite party Hospital Authority or different centre on the advice of the opposite party Hospital Authority, she could have had the necessary receipt for the payment of charges for such x-ray and scan or the medical prescription given by the opposite party doctor for taking x-ray and scan in some other hospital. No material worth the name had been filed on record on such aspect of the matter by way of marking certain exhibits. It appears that the complainant was desirous of prosecuting her assailants in a Criminal Court as if they had caused on her some serious injuries and for which course she appears to have demanded from the opposite party doctor for the issuance of a certificate. At this juncture, we may reiterate for hte sake of emphasis that the Government Headquarters Hospital, Nagercoil, found on her present no external injuries at all and she simply complained of certain pain over her body to the said hospital while she was admitted in the hospital on a police memo. The launching of a complaint as against the opposite party doctor, on the facts and in the circumstances of the case, cant be anyone other than blackmailing the opposite party doctor. The act of the complainant in launching a complaint as against the opposite party doctor for the refusal to issue a certificate and other particulars of treatment he had given to the complainant when especially there is no obligation caused on him to do so, would definitely tantamount to institution of a complaint as against the opposite party doctor either frivolously or vexatiously.  (Para 14)
       
    Result : Appeal allowed.
       
    ORDER
       
    Thiru Justice M.S. Janarthanam, President – This appeal is directed against the order dated 10.2.1997 in O.P. No. 137/93 on the file of the District Consumer Disputes Redressal Forum, Nagercoil.
       
    2. The appellant is the opposite party while the respondent is the complainant.
      
    3. The complainant, it appears, was assaulted by her enemies on 26.11.1992 at 6 p.m. near her house. She reported the matter to Nesamani Nagar Police Station. The station House Officer (S.H.O) on the Police Station issued a memo for the treatment of her injuries alleged to have been sustained in the occurrence. She was admitted in the Government Headquarters Hospital on the Police Memo as an inpatient and eventually got discharged on 28.11.1992. The Government Headquarters Hospital, Nagercoil issued a certificate to the following effect : 
      
     ” Pain Abdomen,
        Bodily Pain,
        No external injuries
        Opinion : injury simple. “
       
    Thereafter, it appears, she took treatment from the opposite party, doctor. She would claim that she was there as an inpatient for sometime. During her stay there, she had taken x-ray and scan. She would also allege that she spent a huge amount for the stay in the hospital as an inpatient. When she was discharged from the hospital, she prayed for a certificate and particulars of treatment to which the opposite party, doctor, refused to issue. She would state that the act of the opposite party, doctor, in refusing to issue the certificate and other particulars of treatment given to her in the said hospital would amount to deficiency in service on his part. For such deficiency in service, she claims compensation in a sum of Rs. 50,000/-.
      
    4. The opposite party doctor in pith and substance would contend that she was not at all admitted in their hospital as an inpatient. She took treatment as an outpatient for a specified period. There is no deficiency in service on their part. To say that x-ray and scan report has been taken is shorn of the reality of the situation. The complaint is liable to be dismissed as such.
      
    5. The Forum below after taking into consideration the materials placed on record recorded a finding that the refusal on the part of the opposite party hospital to issue certificate and the particulars of treatment given to her would tantamount to deficiency in service and ultimately directed to opposite party to pay a sum of Rs. 5,000/- by the way of compensation besides cost of Rs. 500/-
       
    6.  Aggrieved by the order as above, the opposite party resorted to the present action by engaging a Counsel of their choice namely learned Counsel Mr. C. Godwin.
      
    7  On service of process, the respondent/complainant entered appearance through a counsel of her choice namely learned Counsel M. Richard Dass.
       
    8.  Whether the arguments of learned Counsel Mr. D. Yesa, representing learned Counsel Mr. C. Godwin, appearing for the appellant and learned Counsel Mr. M. Richard Dass, Appearing for the respondent/complainant.
      
    9.  From the pith and substance of the submissions of respective learned Counsel appearing for the parties, the points as below emerge of consideration.
       
      (1)  Whether the order of the Forum below is sustainable in law, on the facts and in the circumstances of the case ?
       
      (2)  If for any reason, this Commission comes to the conclusion that the order of the Forum below is not sustainable in law, on the facts and in the circumstances of the case, and the complain, as filed, ought to have dismissed, is it permissible for this Commission, on the facts and in the circumstances of the case, to record a finding that the complaint, as instituted, is a frivolous or vexatious thereby mulcting liability on the complainant to pay cost in a reasonable sum to the opposite party?
       
    10.  Point No. 1 : The gravamen of the accusation as hurled by the complainant as against the opposite party doctor would tantamount to deficiency in service on his part. The Forum below affixed its seal of approval to such a hue of view as projected by the complainant. The Forum below, while recording such a finding, we are of the view, was rather oblivious of the legal position as of obtaining now and perhaps was the reason for the Forum below to have rendered such a finding.
       
    11.  Pertinent it is at this juncture to refer to a decision emerging from the National Commission in the case of Poona Medical, Foundation v. Maruttrao L. Tikare & Anr. I(1995) CPJ 232 (NC)=1995 (1) CPR P. 661. In that case, the question that arose for consideration was as to whether the non-furnishing of the medical papers of the hospital would amount to deficiency in service on the part of the hospital. The National Commission considered the question and answered the same in the negative. While doing so, what the National Commission observed is relevant and such aspect of the matter is getting reflected in paragraph 4 at page 662 which runs as under :
       
    ” 1. We find that there is merit in the challenge raised by the appellant against the award of Rs. 10,000/- as Compensation on the ground that failure on the part of the appellant to supply to the complainant copies of the hospital records pertaining to the surgical operation performed on the complainant constitutes “negligence”. There can be no question of negligence by reason of such failure to supply the papers unless there was a legal duty cast on the hospital to furnish such documents to a patients. The appellant hospital had duly given to the complainant at the time of his discharge, the discharge card and slip and also a case sheet wherein the particulars of the diagnosis and the treatment administered to him had been mentioned. No material has been placed before us to show that either by law or by convention or by practice there was any obligation on the part of the hospital to furnish to the patient full particulars of the surgical operation performed on him. It has also to be stated in this context that there was no arrangement of hiring of the service of the hospital by the complainant for consideration with respect to the demand made by the complainant on the hospital for being furnished, such particulars and papers relating to the operation. Hence, we do not find it possible to uphold the view expressed by the State Commission that that failure on the part of the appellant hospital to accede to the request of the complainant for being furnished all the papers relating to his surgical operation and treatment constituted “negligence” and “deficiency ins service” within the meaning of those expressions as defined in the Consumers Protection Act. We accordingly set aside the order of the State Commission is so far as it has awarded Rs. 10,000/- as compensation to the complainant on this count.”
      
    12.  The decision of the National Commission is applicable in all fours to the facts of the instant case. No materials worth the name in the instant case had been placed on record to point out that the complainant was legally entitled to have the copies of the documents to be furnished to her. In this view of the matter, there is no other go for us to reverse the finding of the forum below on this aspect of the matter and we accordingly do so. In this view of the matter, it cannot at all be stated that the order of the forum below is sustainable in law. We answer the point No. 1 accordingly.
       
    13.  Point No 2. : The sequence of events or incidents that took place in the alleged treatment of the injuries sustained by the complainant both by the Government Headquarters Hospital at Nagercoil and the treatment given by the doctor of the opposite party hospital, if related, would enable us to arrive at a just conclusion in recording a finding on this point. Even according to the complainant, she was assaulted by her enemies on 26.11.1992 at 6 p.m. near her house and she reported the matter to Nesamani Nagar Police Station. The SHO of the Police Station referred her to the Government Hospital for the injuries alleged to have been sustained by her in the occurrence. The Government Headquarters Hospital, it appears, admitted her in the hospital on the basis of the police memo and subsequently discharge her on 28.11.1992. while discharging her from the hospital, it was found that except that fact that she complained of certain pain on her abdomen and other parts of her body, no external injury was found on her body. The hospital, further opined that the injury is simple.
       
    14.  The complainant, it appears, not satisfied with the treatment meted out by the Government Headquarters Hospital, Nagercoil, approached the opposite party, doctor, for taking treatment. She would state in the complaint in a flamboyant style that she was admitted as an inpatient in the hospital for pretty long period, that is to say, from 28.11.1992 till 17.12.1992 after expanding a huge amount. She would also further claim that on the advice of the Hospital Authorities, X-ray and scan were taken by spending huge amount. For such hyperbole statements of charges to the opposite party doctor either frivolously or veraciously.
        
    15.  In view of our finding on point No. 1, it goes without saying that the appeal has to be necessarily allowed and the complaint as instituted by the complaint as instituted by the complainant against the opposite party doctor to be dismissed  
       
    16.  This commission in a Forum of first appeal. The appeal before this Commission is a continuation of the original proceeding. Such being the case, the Commission, as an Appellate Forum, is having almost all the powers of a Forum of first instance, namely the Forum below to sift, scan and analyse the material placed on record as a Forum of first instance and come to the conclusion of its own, of course, for different reasons. Thus, we possessed of the powers of the Forum of first instance. Once we come to the conclusion that the complaint as instituted by the complainant against the opposite party doctor is either frivolous or vexatious, it goes without saying that the complainant can be mulcted with the liability on the dismissal of the complaint on the ground of the same being frivolous or vexatious for payment of cost in a sum not exceeding Rs. 10,000/- as had been provided in Section 26 of the Consumer Protection Act, 1986 [ for short “the Act” ]. On the facts and in the circumstances of the case, we rather feel that if the complainant is directed to pay to the opposite party doctor a sum of Rs. 1,000/- by way of cost of the institution of such frivolous or vexatious complaint, it won’t beside justice. We accordingly do so :
       
    17.  In fine, the appeal is allowed; the order of the Forum below is set aside and the complaint itself is dismissed. We direct the complaint to pay to the opposite party doctor a sum of Rs. 1,000/- by way of cost for the institution of a frivolous or vexatious complaint as against the said doctor. This amount of Rs 1,000/- is to be paid within a month from the date of our order or otherwise this amount of Rs. 1,000/- will carry interest @ 12% p.a. till realisation. We however make no order as to cost in this appeal. The order of ours as above is required to be compiled with by the complainant within a month from the date of receipt of our order or otherwise the opposite party doctor is entitled to invoke the provisions of Section 27 of the Act.
       

  • Kashiram Bhimarao Kamble v. Dr. Uday A. Paul & Anr.
    2001 (3) CPR 117 (NC)
      
    Consumer Protection Act, 1986 - Sections 12 and 17 – Medical Negligence – Death of wife of complainant while she was under treatment of respondent opposite parties – Allegation that respondent doctor knew that patient was allergic to penicillin and yet doctor administered ampicillin and oral cosavil, cephalosposin resulting in steven Jones syndrome and ultimate death – Doctor’s evidence that he was the family doctor of complainant and had on many occassions administered ampicillin to patient – Doctor examined by complainant admitted that treatment given to wife of complainant was proper – Cocurrent findings that there was no negligence on part of respondents – Not a fit case for interference in revisional jurisdiction.    (Para 3 and 4)
      
    Result : Revision dismissed.
      
    ORDER
      
    D.P. Wadhwa, President – Complainant is the petitioner before us. He complained of medical negligence and thus deficiency in service by the respondents who are two in number. Both are medical practitioners. Allegation is that because of negligence on the part of the respondents, the wife of the petitioner who was under their treatment died. There is a claim for damages on that account.
      
    2. District Forum after elaborate enquiry held that there is no deficiency on the part of the respondents and dismissed the complaint. Petitioner went in appeal before the State Commission which upheld the order of the District Forum and dismissed the appeal.
      
    3. Aggrieved, petitioner has come before this Commission. It is submitted by the Ms. Lalita Kohli, counsel for the petitioner that the second respondent Dr. Kulkarni knew that wife of the complainant was allergic to penicillin and yet when she was under his treatment, he administered ampicillin and oral cosavil, cephalosporin, resulting in the patient steven-jones syndrome and ultimate death. Admittedly penicillin is administered in various forms. Dr. Kulkarni has stated that he is the family doctor of the complainant and he had on many occasions administered ampicillin to the wife of the complainant and she did not develop any adverse reaction and was never allergic to that. Complainant in support of his case examined two medical doctors namely Dr. Shahpurkar, Dr. Chadda, and Dr. Takale and they said that the treatment given to the wife of the complainant was proper in the circumstances of the case.
      
    4. In view of the concurrent finding of fact that there was no negligence on the part of any of the respondents, we do not find it is a fit case for us to exercise our jurisdiction under clause (b) of Section 21 of the Consumer Protection Act. This revision petition is dismissed.
      
    Revision dismissed.
         

         

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By |2022-07-20T16:44:44+00:00July 20, 2022|Uncategorized|Comments Off on Doctor’s Favour / Physician

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