State Consumer Disputes Redressal Commission
Prabhjot Kaur & Ors. vs Dayanand Medical College And Hospital & ... on 28 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
1st Additional Bench
FIRST APPEAL NO. 1492 OF 2010
Date of Institution: 23.08.2010
Date of Decision: 28.04.2014
1. Prabhjot Kaur aged 33 years wd/o Late Dr.Ravinder Singh
Gabria S/o Sh.Ajit Singh.
2. Vishavjit Singh aged 5 years (minor) s/o Late Dr.Ravinder
Singh Gabria, through his mother, guardian and next friend
Smt.Prabhjot Kaur who has no adverse interest to that of the
minor.
3. Kailash Kaur aged 64 years w/o Ajit Singh s/o Sh.Sohan Singh.
4. Ajit Singh aged 62 years s/o Sohan Singh.
All r/o 1643, St.No.1, Amritsar Road, new Dashmesh Nagar,
Moga.
.....Appellants/Complainants
VERSUS
1. Dayanand Medical College and Hospital, Ludhiana, through its
Chairman/Secretary/Medical Superintendent.
2. Dr.Ajay Kumar, Emergency Department, Dayanand Medical
College and Hospital, Ludhiana.
3. Insurance Company if any (to be disclosed by opposite parties
No.1 and 2).
.....Respondents/Opposite Parties
First Appeal against the order
dated 16.7.2010 passed by the
District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:
Sh. Baldev Singh Sekhon, Presiding Member
Sh. Jasbir Singh Gill, Member Present:
For the appellants : Mrs.Ritam Aggarwal, Advocate For respondents No.1-2 : Sh.Damanbir Singh Sobti, Adv. For respondent No.3 : Sh.Parminder Singh, Advocate for Sh.Munish Goel, Advocate First Appeal No. 1492 of 2010 Page 2 of 6 BALDEV SINGH SEKHON, PRESIDING MEMBER This appeal has been filed by the appellants/complainants against the order dated 16.7.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum"), vide which their complaint filed against the respondents/opposite parties was dismissed in limine on the ground that the medical board constituted by Civil Surgeon, Ludhiana on the advice of District Forum opined that no case of medical negligence was made out against the treating doctor or the management of opposite party No.1 or opposite party No.2.
2. The facts, in brief, that are necessary for the disposal of this appeal, are that Dr.Ravinder Singh Gabria, a practising Ayurvedic Doctor, suffered from disease of jaundice in November, 2008 and got treatment at Jaslok Hospital, Mumbai and remained admitted there for 25 days. He was also diagnosed as suffering from "Adenocarsinoma" of Gall Bladder. He was advised to take remaining treatment at the hospital of opposite parties. It was averred that till 7.8.2009 his condition was very good and he was living a healthy life after treatment. On 7.8.2009, he felt weakness due to low blood pressure and was immediately taken to Ludhiana and got admitted in Dayanand Medical College & Hospital, Ludhiana (opposite party No.1) where he died in the evening on the same day. It was alleged by the complainants that the patient died due to medical negligence on the part of Dr.Ajay Kumar (opposite party No.2) and management of opposite party No.1. Alleging deficiency in service, the complainants First Appeal No. 1492 of 2010 Page 3 of 6 filed the complaint before the District Forum seeking directions to the opposite parties to refund the amount of Rs.5,325/- spent on treatment alongwith interest @ 18% per annum, to pay compensation amount of Rs.19,00,000/- besides litigation expenses to the tune of Rs.21,000/-.
3. Before issuing notice to the opposite parties, the District Forum sent the record of the treatment and referred the matter to the Civil Surgeon, Ludhiana for obtaining expert opinion, who constituted a Board of Doctors to give their opinion on the basis of medical record whether opposite parties No.1 and 2 were negligent while treating Sh.Ravinder Singh Gabria. The report was submitted on 26.5.2010 in which it was concluded that no negligence on the part of medical management was found and the patient was treated as per medical guidelines.
4. The District Forum by relying upon the judgment of Hon'ble Supreme Court in case "Martin F.D'Souza Vs. Mohd.Ishfaq", Civil Appeal No.3541 decided on 17.2.2009 declined to admit the complaint as there was no proof of negligence on the part of treating doctor.
5. Aggrieved by this order, the complainants have come up in appeal on the ground that there was sufficient evidence to prove the negligence. The District Forum, without giving a chance to lead the evidence in support of their pleadings and without issuing any notice to the opposite parties, sent the case for expert opinion and dismissed the complaint. The order under appeal is not sustainable and is liable to be set aside.
First Appeal No. 1492 of 2010 Page 4 of 6
6. We have thoroughly gone through the pleadings of the parties, carefully perused the evidence on record and have considered the submissions of the learned counsel for the parties.
7. The order passed by the District Forum is palpably wrong and is against the latest law laid down by the Hon'ble Supreme Court. The Hon'ble Supreme in case "V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr.", 2010 (2) RCR (Civil)-929, declared that the judgment rendered in "Martin F. D'Souza Vs. Mohd. Ishfaq"
(Supra) as per-incuriam. The District Forum has ignored the law laid down in the above authority. The Hon'ble Supreme Court in its latest judgment in case "A. Srimannarayana Vs. Dasari Santakumari & Anr.", 2013 (2) RCR (Civil)-305, reiterated its view as laid down in case "V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr."
(supra) and held that the complaint can be registered, without seeking any opinion of the expert. The judgment in the case "Martin F. D'Souza Vs. Mohd. Ishfaq" (supra) has been declared as per- incuriam by the judgment of "V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr." (supra) and observed in Para-9 and Para- 10 as follows:-
"9. The aforesaid observations leave no manner of doubt that the observation in Jacob Mathew (supra) were limited only with regard to the prosecution of doctors for the offence under Section 304A IPC.
10. The aforesaid observations and conclusions leave no manner of doubt that the judgment rendered by a two-Judge First Appeal No. 1492 of 2010 Page 5 of 6 Bench of this Court in the case of Martin F.D'Souza (supra) has been correctly declared per-incuriam by the judgment in V. Kishan Rao (supra) as the law laid down in Martin F. D'Souza (supra) was contrary to the law laid down in Jacob Mathew (supra)."
8. In view of above discussion as well as the latest law laid down by the Hon'ble Supreme Court, there was no need, nor the law required that before issuing the notice to the opposite parties, expert opinion of any doctor or board should be taken. The order passed by the District Forum is not, at all, sustainable and is liable to be set aside.
9. Accordingly, the appeal filed by the appellants/complainants is accepted and the impugned order of the District Forum is set aside. The case is remanded back to the District Forum, with the directions that the District Forum shall proceed with the complaint, keeping in view the law laid down by the Hon'ble Supreme Court in the above authority.
10. Record of the District Forum alongwith copy of the order be sent to the District Forum forthwith, on receipt of which, the District Forum shall procure the presence of the parties and shall decide the complaint on merits, after affording due opportunities to both the parties of filing written version, leading evidence etc.
11. The parties are directed through their counsel to appear before the District Forum on 4.6.2014.
First Appeal No. 1492 of 2010 Page 6 of 6
12. The arguments in the case were heard on 24.4.2014 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(BALDEV SINGH SEKHON) PRESIDING MEMBER (JASBIR SINGH GILL) MEMBER April 28, 2014 VINAY