State Consumer Disputes Redressal Commission
1. Dr. Sopanrao Patil vs 1. Shaikh Mohammad Shaikh Chunnumiya on 15 April, 2013
1 F.A.No.425 & 649-09
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD
Date of filing : 06.07.2009
Date of Order : 15.04.2013
(1)
FIRST APPEAL NO.: 425 OF 2009
IN COMPLAINT CASE NO.: 195 OF 2007
DISTRICT CONSUMER FORUM: BEED.
1. Dr. Sopanrao Patil
R/o. Mangalwarpeth, Ambejogai,
Dist. Beed.
2. Sow. Nanyan w/o. Sopanrao Patil
R/o. As above. ...Appellants
-Versus-
1. Shaikh Mohammad Shaikh Chunnumiya
R/o. Ambejogai, Dist. Beed.
2. National Insurance Company Ltd.
Through its Divisional Manager,
Divisional Office, Aurangabad.
(2)
FIRST APPEAL NO.: 649 OF 2009
IN COMPLAINT CASE NO.: 195 OF 2007
DISTRICT CONSUMER FORUM: BEED.
National Insurance Company Ltd.
Through its Divisional Manager,
Divisional Office, Aurangabad. ...Appellant
-Versus-
1. Shaikh Mohammad Shaikh Chunnumiya
R/o. Ambejogai, Dist. Beed.
2. Dr. Sopanrao Patil
R/o. Mangalwarpeth, Ambejogai,
Dist. Beed.
2 F.A.No.425 & 649-09
3. Sow. Nanyan w/o. Sopanrao Patil
R/o. As above. ...Respondents
... Respondent
Coram : Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
Mrs. Uma S. Bora, Hon'ble Member Mr. K. B. Gawali, Hon'ble Member Present: Adv. Shri. D. S. Kulkarni for appellant in Appeal No. 649/2009. Adv.Shri. D. S. Kulkarni, for Resp.No.2. Adv. Shri. S. N.Lavekar, for appellant in Appeal No.425/2009. Adv. Shri. A. A. Khan for resp.No.1 in Appeal No. 425/2009.
-:: ORAL ORDER ::-
Per Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
1. Both these appeals are directed against the order dated 31.01.2009 passed by District Consumer Forum, Beed in C.C. No. 195/2007 by which the said complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that, the deceased Sabiya Begum was his married daughter. The opposite parties Nos.1 & 2 are running hospital by name "Patil Hospital" at Ambejogai and out of them opposite party No.2 is holding D.H.M.S. qualification. Both opposite party Nos. 1 & 2 are conducting deliveries of women. They are admitting the patients in their hospital after charging Rs.300/- as admission fee. They are accepting Rs.50/- per day for bed. The deceased Sabiya Begum was pregnant and therefore the complainant took her to the aforesaid hospital of the opposite party Nos. 1 & 2, prior to two to three months of her delivery. It was found during weekly check up in that hospital that everything was normal. The complainant took deceased Sabiya Begum lastly to the aforesaid hospital on 08.02.1992 as she had 3 F.A.No.425 & 649-09 labour pains. She was admitted in that hospital in the morning at 5.00 a.m. on 08.02.1992. The complainant paid charges for the delivery and room charges. Deceased Sabiya Begum was having severe pain and she was uneasy. The opposite party No.1 Dr. Sopanrao Patil was intimated about the same by the mother of Sabiya Begum. But he said that the delivery will occur after 2 to 3 days and there was no danger to the life of the Sabiya Begum. The opposite party No.1 did not attend Sabiya Begum though repeated requests were made by mother of the Sabiya Begum to attend her. The condition of Sabiya Begum was deteriorated and then she was taken to labour room by the doctors at 7.30 p.m. on 08.02.1992 and the baby was taken out from her womb with the help of forceps by the doctors. The born baby died on the table and Sabiya Begum started profuse bleeding. The said bleeding occurred due to negligent way of handling of the delivery by forceps. Consequently Sabiya Begum also died on the table at 8.00 p.m. on 08.02.1992. The doctors took her to SRTR Medical College & Hospital, Ambejogai in rickshaw where doctor declared her as dead. Post Mortem was conducted on the dead body of the Sabiya Begum at 12.00 noon to 1.00 p.m. on 09.02.1992. The death certificate was issued. Complaint was lodged with the police against both the opposite parties. Police registered crimes against them under section-304(A) of I.P.C. The opposite party Nos. 1 & 2 failed to give proper service and medical care to the deceased Sabiya Begum and she died due to their negligence. They did not provide her advance medical treatment, attention and facilities. They exhibited deficiency in service. The opposite party No.3 is the Insurance Company which was subsequently impleaded in the complaint on the ground that the 4 F.A.No.425 & 649-09 risk of the life of patients of the aforesaid hospital was covered under the insurance policy by it. The complainant therefore claimed compensation of Rs. 2,50,000/- from the opposite party Nos. 1 to 3.
3. The opposite Party Nos. 1 & 2 filed common written version and thereby they denied their liability. Initially, the complaint was filed before the State Commission and therefore objection was taken by them that complaint is not maintainable before the State Commission, since the claim of compensation is below Rs.5,00,000/-. They further submitted that their hospital is having various facilities as described in their written version in detail, and that they are practicing as doctors with greatest record to the welfare of the patient. They denied all the allegations made in the complaint about their negligence. They submitted that Sabiya Begum died due to ARDS (Acute Respiratory Distress Syndrome) and it has no nexus with the birth of the child. They submitted that after the death of deceased Sabiya Begum, post mortem examination was conducted and the opinion given by Dr. M.P. Kulkarni after post mortem examination shows that there was no negligence on their part. They admitted that Sabiya Begum aged 20 years was brought to their hospital on 4.30 a.m. on 08.02.1992, with labour pain. They denied that she was under their treatment for three months prior to her delivery. Her general condition was good when she was brought to their hospital. She was under watch by opponent No.1 at night. At 8.30 a.m. she was given xylocaine injection. Her pulse and B/P were good and then at 7.15 p.m. there was normal delivery and still baby was born. There was no bleeding and placenta was delivered normally. The suturing of Episiotomy 5 F.A.No.425 & 649-09 wound was done at 7.30 p.m. after child birth. At 8.00 p.m. she had become restless with Tachycardia Hypotention and she went in shock and her condition became poor. All emergency treatment was given. She was shifted to Medical College & Hospital at Ambejogai as per request of her cousin Mohammed Zameen Abdul Gafoor at 8.15 p.m. She was given treatment there but she did not respond to treatment and died. Therefore they submitted that complaint may be dismissed.
4. It is seen that, initially the complaint was filed before the Maharashtra State Consumer Disputes Reddresal Commission, Mumbai. It was decided on 13.11.1997. The appeal No. 92/98 was preferred against the said decision before the Hon'ble National Commission. It was decided on 08.01.2007. The Hon'ble National Commission remanded the complaint to the District Forum, Beed vide order dated 23.11.2007 for the purpose of deciding the matter afresh in accordance with the law in the light of following questions, which have arisen in the matter. The Hon'ble National Commission, while remanding the complaint under Appeal No. 92/1998 vide order dated 23.11.2006 directed that following six questions are required to be considered.
i. Whether by any stretch of imagination, the respondent No.2 could practice as a doctor for the purpose of delivery of a child?
ii. If not, what was her role in delivery?
iii. After point No.2 is decided to the effect that she performed the delivery then what should be her liability ? and 6 F.A.No.425 & 649-09 iv. Whether Respondent No.1 Dr. Sopan Ukhardu Patil was negligent in any manner in performing the delivery in the light of his role?
v. If point No.4 is decided against Sopan Patil, what shall be his liability?
vi. Whether newly impleaded Insurance Company shall be liable in case of valid insurance policy on the date of incident?
5. The Respondent No.3 Insurance Company was added to the complaint after remand of the said case. The Respondent No.3 also filed its written version before the District Forum, Beed. It admitted that opponent No.1 & 2 are running the aforesaid hospital at Ambejogai. It submitted that opponent No.1 is holding qualification as M.S. & opponent No.2 is holding qualification as Diploma in Homeopathy Medicine and Surgery (DHMS). It also submitted that opponent No. 1 & 2 are having facilities of treatment of the patient generally required for delivery. It also admitted that the Sabiya Begum, the daughter of the complainant was admitted on 08.02.1992. It denied the rest of the allegations made in the complaint against opponent No. 1& 2. It submitted that the insurance policy obtained from it by opponent Nos. 1 & 2 was for the period from 08.01.1992 to 07.01.1993. It also submitted that opponents have given every possible service to the deceased Sabiya Begum and that they are expert medical practitioners and that the complainant has not made out a case of deficiency in service on the part of said opponents. The opponent Nos. 1 & 2 were not negligent in any manner. It therefore submitted that the complaint may be dismissed.
7 F.A.No.425 & 649-096. The learned Advocate Shri. D. S. Kulkarni appearing for appellant/original opponent No.3 in Appeal No. 649/2009 argued on the lines of the aforesaid arguments of the learned Advocate the appellant who argued in connected Appeal No.425/2009. He further submitted that the impugned order is passed on assumption and presumption only and Sabiya Begum did not die in the hospital of original Opponent No.1 & 2 but she died in Government Medical College and Hospital, Ambejogai and hence no negligence can be proved on the part of original Opponent No.1 and consequently opponent No.3 is not liable to pay compensation.
7. The District Forum below after having considered evidence brought on record and after hearing advocates of both the parties came the aforesaid six issues involved in the complaint. It held that the opponent No.2 can do the medical profession and that there was no role of opponent No.2 in the delivery of the deceased Sabiya Begum and that therefore opponent No.1 is not responsible or liable for payment of compensation. The District Forum below also observed that the opponent No.1 was negligent in performing the delivery of the deceased Sabiya and that opponent No.1 is liable to pay compensation of Rs.1,50,000/- to the complainant. It also observed that the opponent No.3 Insurance Company is liable to pay the said compensation of Rs. 1,50,000/- to the complainant as the insurance was valid on the date of the incident. The District Forum below therefore directed the opponent No.1 & 3 to pay jointly and severally to the complainant compensation of Rs. 1,50,000/- within one month. It also directed them to pay jointly and severally compensation of Rs. 5000/- to the complainant within one month 8 F.A.No.425 & 649-09 towards mental harassment. It also directed that if said amounts are not paid within said time, said amounts will carry interest @ 9 % p.a.
8. The District Forum below dismissed the complaint as against opponent No.2.
9. Feeling dissatisfied with the said order the original opponent No.1 filed Appeal No. 425/2009, whereas original opponent No.3 filed Appeal No.649/2009. We have heard advocates of both sides and perused the papers placed before us. The advocate of both sides also filed written notes of arguments which we have also perused. The submission of the learned advocate of the opposite party No.1/appellant in Appeal No.425/2009 is summarised point wise as follows:
i) The original complainant is not the heir or successor of deceased Sabiya Begum and hence he is not covered under the definition and hence he can not file the complaint.
ii) The criminal case filed against the original opposite party No.1 for medical negligence has been dismissed and hence present complaint is not maintainable.
iii) The District Forum below did not consider the opinion given by an expert Dr. Kulkarni and erroneously disbelieved that opinion simply on the ground that affidavit of Dr. Kulkanri is not filed.
iv) The complainant failed to prove medical negligence on the part of original opponent No.1. The opposite party No.1 is 9 F.A.No.425 & 649-09 holding degree as M.S. and his hospital is well equipped with and having all facilities of treatment and hence no medical negligence can be proved against him.
v) The District Forum below did not properly consider the papers of the hospital of opposite party No.1 and the opinion given by Dr. Kulkarni which was based on post mortem report, histopathology and other documents, which prove that there was no negligence on the part of opposite party No.1.
vi) The doctor had checked Sabiya Begum from time to time and when her condition was deteriorated, doctors had given advice to shift her to Govt. Medical College and Hospital and doctor had also accompanied that patient and Dr. Suryavanshi treated in the said Medical College Hospital where she died. Thus according to him the District Forum below has erroneously passed the impugned order and hence it may be set aside.
He relied upon observations made in the following cases:
i. G.P. Gupta through LRs, Vs. Mehrotra Pathology and Ors. 2012 (2) CPR 81 (NC). It is observed that mere histopathology examination of specimen could not be treated as conclusive finding.
ii. Smt. Sajini Major Vs. Chaya Nursing Home & Ors, 2012 (2) CPR 111 (NC) It is held that, Medical complications cannot give always lead to inference of medical negligence.
10 F.A.No.425 & 649-09iii. Laxman Das Vs.Ashit Baran Kar (Dr.) I (2009) CPJ 154 In that case there was no independent evidence produced to prove medical negligence. Similarly question was under
consideration of Criminal Court. It is held that an allegation regarding medical negligence is not adjudicable and hence order of dismissal of complaint passed by District Forum was upheld by Tripura State Commission.
iv. Malay Kumar Ganguly Vs. Sukumar Mukherjee and Ors. AIR 2010 SUPREME COURT 1162.
It is held that doctor can not be held guilty under section 304-A of I.P.C. only because something has gone wrong and for fastening criminal liability, very high degree of such negligence is required to be proved.
v. Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. AIR 2010 SUPREME COURT 806.
It is observed that there is a need to hear an expert opinion where there is a medical issue to be settled and it is to be shown that he has made special study of subject or acquired special experience therein.
vi. Neeraj Amarnath Dora Vs. Nandan Hospital and Ors, II (2011) CPJ 171 (NC). It is held that right to sue does not survive in case of medical negligence and legal heirs cannot be ordered to be brought on record.
vii. M. Radhakrishna Murthy (Dr.) Vs. Parakulam Elishama Babu, III (2007) CPJ 96 (NC). In that case appropriate treatment 11 F.A.No.425 & 649-09 was given in delivery of a child and hence complaint was dismissed.
viii. Malathi, N.R. Vs. Vidyamani (Dr.) & Anr. II (2008) CPJ 25 (NC) In that case, complainant miserably failed to substantiate medical negligence and hence complaint was dismissed.
ix. Radhika Rakesh Nigam, Vs. Dr. (Mrs.) Swaraj Naik, IV (2011) CPJ 486 (NC).
It is observed that it is not legally permissible to hold doctor guilty merely because one set of medical literature does not recommend use of Tramadole injection for labour paid relief since there is another opinion holding that administration of this analgesic is unlikely to have caused respiratory distress.
x. Abdul Rahim Vs. Dr. Kannaki Thiruvalluvan & Ors, IV (2008) CPJ 225.
In that case doctors were held not deficient in service under the facts and circumstances of that case.
xi. Shravan Kumar Kaushal & Anr, Vs. P. Jaamjoot (Dr.) & Anr, I (2008) CPJ 88. In that case condition of the mother was not good and child had passed stool in her womb.
Emergency operation was necessitated. The mother died due to pulmonary embolism. The hospital was well equipped. No negligence or deficiency in service was proved, and hence no relief was granted.
xii. Dr. Ravindra Kulkarni vs. Balasaheb Gangaram Gavade, II (1999) CPJ 152.
12 F.A.No.425 & 649-09In that case there was profuse bleeding after delivery and the patient died due to shock by amniotic fluid embolism. No deficiency in service was proved in that case.
xiii. Smt. Aarti Sharma @ Juhi Sharma Vs. Dr. (Mrs.) IV (2003) CPJ
589. In that case there was discharge of mother after 48 hours of normal delivery. The complainant failed to prove complication suffered and hence the medical negligence was not proved.
xiv. Dr. Anupam Jain & Ors, Vs. Umakant Pandey & Anr, II (2005)
632. In that case patient died after delivery due to Pulmonary Embolism. It is observed that Pulmonary Embolism is medical complication which occurs in delivery cases. In that case recognized procedure was followed by doctor and hence no negligence was proved.
xv. Mamta Sridhar Iyer & Anr, Vs. Kunjnnam Poulose (Dr.) & Anr.
II (2008) CPJ 411. In that case no expert opinion was produced to prove alleged negligence. Necessary efforts were made by doctor on her own volition with the purpose of giving relief to woman in distress, free of cost. No negligence or deficiency in service was there for proved in that case.
9. On the other hand, the learned advocate of the original complainant submitted that, complaint is maintainable as it is filed by the father of the deceased Sabiya Begum. Original Opponent No.1 did not come to attend deceased Sabiya Begum 13 F.A.No.425 & 649-09 though he was requested several times by her mother, though the said deceased Sabiya Begum was under severe labour pains since long. He further submitted that the forcep was used for removing the child from womb at 7.30 p.m. and therefore Sabiya Begum started profuse bleeding and when her condition became serious doctor gave advice to shift her Govt. Medical College and Hospital, Ambajogai. Then she was taken to that Medical College and Hospital where she was declared dead. Thus he submitted that deceased Sabiya and her child died due to negligence of the original opposite party No.1/appellant (in appeal No.425/2009) and therefore the District Forum has rightly granted Rs.1,50,000/- as compensation. He relied upon observations made in the following cases:
i. State of Orissa and others Vs. M/s. G. N. Patnaik and Y.S. P. Babu, in OJC No. 8819 and 6311 of 2000 decided on 17.09.2012 by Hon'ble Orrissa High Court. Under the facts and circumstances of that case the petitioners as well as legal representatives of the deceased were granted compensation for death of person caused due to negligence on the part of doctors.
ii. V. Kishan Vs. Hospital and another, (2010) V Supreme Court Cases 513. It is observed by Hon'ble Supreme Court that for claiming compensation, expert opinion is required only when a case is complicated enough warranting expert opinion.
10. It is not disputed that deceased Sabiya Begum was pregnant and she was taken by her father who is the complainant 14 F.A.No.425 & 649-09 to the hospital of the original opponent No. 1 & 2 for the purpose of delivery, on 08.02.2012 on 5.00 a.m. and at that time she was having labour pains and she was admitted in that hospital. It is further not disputed that during her delivery at 7.30 p.m. on 08.02.1992 she delivered dead baby and thereafter within short time she died. The complainant i.e. father of the said deceased then lodged report with the police. The post mortem examination on the dead body of Sabiya Begum was done by the doctors. No cause of death was given in post mortem report. The opinion was reserved as per the said P.M. report. The final opinion about cause of death was given subsequently on receiving Chemical Analyzers report and Histopathological report. The said cause of death is given by the doctors as "Haemorraghic Shock". Crime was registered under section 304- A of I.P.C. against the Opponent Nos. 1 & 2 by police for causing death of Sabiya Begum due to negligence. During investigation the matter was referred to Dr. Kulkarni, who perused the relevant papers submitted to it by police and gave opinion that there does not seem to be evidence of gross negligence on the part of treating doctors.
11. It is worthy to note that the opposite parties Nos. 1,2 & 3 did not raise any plea about the non-maintainability of the complaint on the ground that, the complainant is not a legal heir of deceased Sabiya Begum though the complaint had gone upto the Hon'ble National Commission which remanded back the complaint to the District Forum below. For the first time they raised the plea in this appeal during second round of litigation, that the complainant is not legal heir of the deceased Sabiya Begum. However, the deceased is Muslim and the Hindu 15 F.A.No.425 & 649-09 Succession Act is not applicable in respect of the succession on the ground of the death of Sabiya Begum. Under Mohammedan Succession Act, the father is one of the Legal Heir of his daughter .
Therefore we hold that the complainant being one of the legal heir of deceased Sabiya Begum, complaint is maintainable.
12. It is seen from the papers produced before us that after registration of crime, no criminal case was filed against the original opposite party Nos. 1 & 2. Police during investigation did not file sufficient evidence to file charge sheet against opponent Nos. 1 & 2 under Section 304-A of I.P.C and therefore police forwarded A-summary report to the court. The A- summary was granted by the concerned Criminal Court on 13.06.1994. Therefore there is no adjudication of the dispute from the Criminal Court on merits of the case. Hence decision given in the aforesaid case of Shantha Vs. Gauda relied upon by the learned advocate of opponent No.1 is not applicable to the present case. The acceptance of A-summary by the Criminal Court has got no bearing on the present case.
13. The District Forum below in the impugned order observed that the opposite party Nos. 1 & 2 field xerox copies of the case papers of their hospital, which are not legible. It also observed that it was necessary for them to make detail averment in the written version as to what treatment was given to deceased Sabiya Begum from her admission till her death, but they have not given so. We called the original Record and Proceedings of the aforesaid complaint bearing C.C. No. 115/2007 and we have perused the same. The typed copies of the said indoor case papers of the original opposite parties Nos. 1 & 2 are included in 16 F.A.No.425 & 649-09 the file at page Nos. 87 to 89. We have carefully gone through the same. The said case papers falsifies the plea of original party No. 1 & 2 as taken in written version that the deceased Sabiyabai was shifted from their hospital to Government Medical College and Hospital, Ambejogai as per request of her cousin Mohammed Zameem Abdul Gafoor, against the medical advise at 8.15 p.m. on 08.02.1992. The said case papers show that the patient was not responding to the given treatment and therefore was transferred to Govt. Medical College and Hospital, Ambajogai for further treatment. The said case papers do not show that deceased was discharged from the hospital at the request of her close relative against medical advice. It is not shown in the case papers as to why the deceased Sabiya was not treated in the same hospital and what necessitated to refer her to the Govt. Medical College and Hospital Ambajogai. It was necessary to mention the same in the case papers since it is claimed by original opponent Nos. 1 & 2 in their written version that their hospital was well equipped for the purpose of delivery of women and treatment. It is also not their case that required facility of testing or treatment was not available in their hospital and therefore she was transferred to higher centre for that purpose. The shifting of Sabiya Begum by opponent No.1 to Govt. Medical College and Hospital, Ambajogai without any such ground proves that he wanted to save himself from consequence of liability that may arise due to the death of Sabiya Begum.
14. The Opponent Nos. 1 & 2 have also claimed that when deceased Sabiya Begum was transferred to Government Medical College and Hospital she was in critical condition. The case 17 F.A.No.425 & 649-09 papers of their hospital show that the deceased Sabiya delivered dead baby at 7.15 p.m. on 08.02.1992 and she was transferred from their hospital to aforesaid Government Medical College & Hospital at 8.15 p.m. i.e. after one hour of her delivery of a child.
15. Dr. Kulkarni to whom police had referred the case papers for his opinion opined in his report that death of Sabiya Begum had occurred within one hour upon her delivery. The said opinion is not disputed by the original opponent No.1 & 2. Therefore it is crystal clear that as Sabiya Begum had delivered baby at 7.15 p.m., she had died at 8.15 p.m. i.e. before she was shifted to Govt. Medical College and Hospital. This fact has been deliberately suppressed by the original Opponent No.1 & 2 which proves their guilty mind and therefore adverse inference can be drawn against them. The original opponent Nos. 1 & 2 in their written version as noted above have also come with a case (in para No. 20) that the Sabiya Begum has history of " Pleaurisy." The typed copy of case papers of that hospital do not show any such history of deceased Sabiya Begum. Therefore their case can not be accepted that history of pleaurisy supports the hystopathological report about Pulmonary Edema. In the absence of any such entry in the case papers, we are not inclined to accept that the deceased Sabiya had history of "Pleaurisy".
16. The argument of the learned Advocate of original opponent No.1 that the hospital run by the opponent Nos. 1 & 2 is having of facilities for treatment for every kind of service is of no assistance to show that actually they provided treatment to the deceased Sabiya Begum with reasonable skill and care. On the 18 F.A.No.425 & 649-09 contrary, when there were such all types of facilities, it was not necessary for them to refer deceased Sabiya Begum to Government Medical College & Hospital for treatment.
17. The learned Advocate of the Opponent No.1 strongly relied upon the opinion given by Dr. Kulkarni during investigation of crime by police. The Opponent Nos. 1 & 2 in their written statement also stated that, the opinion given after post mortem examination by the doctors about cause of death is "Haemorraghic Shock" is incorrect and her cause of death is Acute Respiratory Distress Syndrome (for short "ARDS) and it has got no nexus with the treatment given by them and or the delivery of the new born. The case papers of the hospital of the original opponent Nos. 1 & 2 show that, "Dead baby was delivered by the Sabiya Begum at 7.15 p.m. and that at 7.20 p.m. the placenta was separated and delivered naturally, about 315 to 400 c.c. bleeding occurred during separation and expulsion of placenta and no post partem bleeding in excess, after injection Methergin. Her general condition was good at 7.30 p.m. At 8.00 p.m. She became restless. At 8.15 p.m. she became irritable and her general condition was poor. Her pulse was 130/M and very feeble. Her B/P of 70 MM Hg and she was not responding to the given treatment.
As observed above she died after one hour of delivery i.e. at 8.15 p.m. on 08.02.1992 as per opinion of Dr. Kulkarni.
18. The Post Mortem examination was conducted by Dr. R. V. Suryavanshi & Dr. A. M. Deshpande and report about her cause of death was reserved by them till receiving reports of hystopathological examination and Chemical Analysis of 19 F.A.No.425 & 649-09 viscera. They being working at Medical College and Hospital, Ambejogai had conducted post mortem examination and after receiving Chemical Analysis report and hystopathological report of the said patient, they gave final opinion about cause of death as "Haemorraghic Shock." There is no reason to disbelieve the said opinion given by the competent two doctors of Govt. Medical College and Hospital, Ambajogai.
19. As per opinion of Dr. N. P. Kulkarni the cause of death is 'Pulmonary Edema', secondary either Pulmonary Embolism or Adult Respiratory Distress Syndrome (ARDS). The said opinion is given only on the basis of case papers. However, the opinion by the Dr. R.V. Suryavanshi and Dr. A. M. Deshpande who were working as Doctor and Lecturer in Government Medical College & Hospital is given actually after conducting post mortem examination and considering report of Chemical Analyzer and hystopathological report received by them. Therefore as per the said opinion cause of death is Haemorraghic Shock. Therefore the report of Dr. R.U. Suryavanshi and Dr. A. M. Deshplande given about the cause of death is "Haemorraghic Shock" carries more weight than the opinion given by the Dr. Kulkarni simply on going through the case papers.
20. The opinion given by Dr. Suryavanshi and Dr. A.M. Deshpande is also supported by case papers of hospital of original opponent No.1 in which one of the entry recorded is of bleeding after delivery as noted above. Dr. Kulkarni in his report has not given reference of any Medical text in support of his opinion about cause of death. Therefore we find that the 20 F.A.No.425 & 649-09 District Forum below has rightly disbelieved the opinion given by Dr. N. P. Kulkarni.
21. It is also pertinent to note that the Opponent No.1 was holding degree as M.S. (General Surgeon) and Opponent No.2 was holding degree of DHMS who are looking after affairs of aforesaid hospital in which deceased Sabiya Begum was admitted for delivery. The Opponent No.1 Dr. Sopan Patil is not a Gynecologist and therefore it can not be said that he is well expert in Gynecological matters. Thus accepting the cause of death of Sabiya Begum as Haemorraghic Shock during her delivery, it can be said that the original opponent No.1 Dr. Sopan Patil (appellant in Appeal No.425/09) did not use reasonable skill and care at the time of delivery of a baby by deceased Sabiya Begum. Therefore she started profuse bleeding and as opponent No.1 Dr. Sopan Patil was negligent in providing her proper treatment, she continued bleeding even after her delivery. Deceased Sabiya Begum was admitted in his hospital at 4.30 a.m. as seen from the entry of case papers dated 08.02.1992 and she died at 8.15 p.m. on the same date i.e. after 16 hours. The Opponent No.1 could have taken proper steps since her admission with symptoms of labour pain. He took no proper care for her proper delivery. Therefore we hold that it is proved from the evidence brought on record and the facts and circumstances discussed above that death of deceased Sabiya Begum has been occurred due to negligence on the part of Opponent No.1/appellant in Appeal No.425/2009 and hence the complainant is rightly held entitled for the compensation.
21 F.A.No.425 & 649-0922. As regards the quantum of compensation, the District Forum below has assessed the same as Rs.1,50,000/- only. The said order about quantum of compensation is not assailed before this Commission by original complainant. Therefore we find that the said compensation is just and proper under the facts and circumstances of the present case.
23. We thus hold that the aforesaid decisions relied upon by the learned Advocate of appellants in both appellants are of no assistance to the appellant since the facts and circumstances of the present case observed above are totally different from those cases. Thus there is no merit in both the appeals and they deserve to be dismissed. Accordingly, we pass the following order.
-:: ORDER ::-
1. Both appeals Nos. 425/2009 & 649/2009 are hereby dismissed.
2. No order as to cost in these appeals.
3. Copies of this judgment and order be sent to both the parties.
(K. B. Gawali) (Mrs. Uma S. Bora) (B. A. Shaikh) Member Member Presiding Judicial Member Kalyankar