State Consumer Disputes Redressal Commission
Juthika Jana vs Kishor Sardar on 19 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/253/2017 ( Date of Filing : 13 Nov 2017 ) (Arisen out of Order Dated 21/09/2017 in Case No. Complaint Case No. CC/91/2017 of District South 24 Parganas) 1. Juthika Jana Kulpi Block, Kulpi Gramin Hospital, P.O. & P.S. - Kulpi, Dist. South 24 Pgs., Pin -743 351. 2. Shibani Bera Kulpi Block, Kulpi Gramin Hospital, P.O. & P.S. - Kulpi, Dist. South 24 Pgs., Pin -743 351. ...........Appellant(s) Versus 1. Kishor Sardar S/o Panchu Ram Sardar, Vill. & P.O. - Belpukur, P.S. - Kulpi, Dist. South 24 Pgs., Pin -743 351. 2. Dr. Prabal Kanti Gayen Kulpi Block, Kulpi Gramin Hospital, P.O. & P.S. - Kulpi, Dist. South 24 Pgs., Pin -743 351. 3. Dr. Nihar Ranjan Mondal Kulpi Block, Kulpi Gramin Hospital, P.O. & P.S. - Kulpi, Dist. South 24 Pgs., Pin -743 351. 4. Dolon Mal Kulpi Block, Kulpi Gramin Hospital, P.O. & P.S. - Kulpi, Dist. South 24 Pgs., Pin -743 351. 5. Dr. Jafar Ali Kapathat, Diamond Harbour, P.S. Diamond Harbour, Pin -743 331, South 24 Pgs. 6. Astha Maternity & Bursing Home Kapathat, Diamond Harbour, P.S. Diamond Harbour, Pin -743 331, South 24 Pgs. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Petitioner: Ms. Tanusree Dhar, Mr. Subhankar Sanyal, Mr. Alok Mukhopadhyay, Advocate For the Respondent: Mr. Uttam Kr. Halder,Piyali Saha,prasanta Banerjee, Advocate Dated : 19 Jun 2018 Final Order / Judgement
The instant Revisional Application under Section 17(1) (b) of the Consumer Protection Act, 1986(hereinafter referred to as 'the Act') is at the behest of the Opposite Party Nos.2 & 3 viz. - (a) Smt. Juthika Jana and (b) Smt. Shibani Bera to assail the Order No. 05 dated 21.09.2017 passed by Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (for short, Ld. District Forum) in Consumer Complaint No.91 of 2017. By the impugned order, the Ld. District Forum rejected the application being MA/266/2017 filed by the OP Nos. 2 & 3/revisionists for expunging their names from the cause title of petition of complaint.
The Opposite Party No.1 herein being Complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum on the allegation of deficiency in services on the part of Opposite Parties including the revisionists who were nurses of Kulpi Gramin Hospital for their gross medical negligence and deficiency in services resulting amputation of right hand thumb of the complainant claiming compensation of Rs.16,00,000/- for loss of right hand thumb and compensation of Rs.3,00,000/- for harassment and mental agony and litigation cost of Rs.50,000/-.
The materials on record indicate that on 28.05.2017 the complainant was admitted to Kulpi Gramin Hospital for his abdomen pains and he was under the supervision of Dr. Nihar Ranjan Mondal (OP No.3). It is alleged that a saline channel was connected in the left hand beside the thumb finger of complainant for the purpose of his treatment. On 30.05.2017 one Dr. Prabal Kumar Gayen (OP No.1) of Hospital who visited the complainant found his saline channel was not working properly and then he made a new saline channel in the right hand beside the thumb finger with the help of two nurses i.e. the revisionists. When the complainant was feeling more pain, he reported the same to the nurses/revisionists but they did not listen. Then Dr. Gayen has prescribed some injections and medicines for the complainant and instructed to the nurses to push injection through saline channel and the nurses pushed injection through the saline channel. After few hours, the complainant has felt his right hand insensitive and swelling and he was crying and requested the nurses to call the doctor but it also remain unheeded. On 31.05.2017 Dr. Gayen found that complainant's condition has become critical and he transferred the patient to Diamond Harbour District Hospital. Ultimately, the right hand of the thumb of the complainant/victim has suffered amputation. In this backdrop, the victim being complainant lodged the complaint against several doctors, nurses and nursing home etc. After entered appearance, the opposite party nos. 2 & 3/revisionists by filing an application being MA/266/2017 have prayed for strike off their names from the cause title on the ground that they had performed their duty as per direction of the doctors and as such no liability can be attributed upon them and for the alleged deficiency they cannot be held responsible.
However, by the impugned order, the Ld. District Forum rejected the application with an observation that if the names of OP Nos. 2 & 3 be expunged, the complaint lodged by the victim may suffer and the OP Nos. 2 & 3/revisionists will not be prejudiced to prove their innocence at the time of hearing of the case.
Mr. Alok Mukhopadhyay, Ld. Advocate for the revisionists has submitted that the revisionists were acting under the supervision and guidance of the doctors namely OP Nos. 1 & 4 and as such if there is any negligence or deficiency, the doctors may be held responsible but the nurses cannot be blamed to that effect and there is no such instance that an order of compensation has been passed against a nurse in a case of medical negligence. In support of his contention, Ld. Advocate for the revisionists has placed reliance to two decisions of Hon'ble National Commission reported in - (1) (2012) CJ 113 (NC) [BNM Educational Institution & Anr. - Vs. - Kum Akshatha & Anr.] and (2) II (1997) CPJ 98 (NC) (Para-34) [Harjot Ahaluwalia (minor) through his parents - Vs. - Spring Meadows Hospital & Ors.].
Ld. Advocate for OP No.1/complainant has contended that if the name of revisionists are excluded from the cause title of petition of complaint, the complainant will suffer because they were directly responsible for the negligence and their inhuman behaviour made the situation from bad to worse.
Ld. Advocates for OP Nos.2 and OP No. 3 have submitted that in order to prove the innocence of OP Nos. 2 & 3, the presence of those two nurses will be required.
Ld. Advocate for OP No.4 has contended that if those two nurses are exempted, she being another nurse having no fault on her part will be seriously prejudiced.
Ld. Advocate for OP Nos. 5 & 6 has submitted that he will prove innocence of his clients but in the interest of justice, at this stage, it would not be proper to allow the revision petition which in turn will exonerate the revisionists from the allegation made by victim.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the respective parties and seen the materials on record including the impugned order.
While disposing of the application, the Ld. District Forum has observed that if the nurses are found negligent to provide the treatment as per instruction of doctor, the nurses will be equally responsible because it is the duty of the nurses to administer the medicines or saline time to time to the patient. There is hardly any reason to differ with the view of the Ld. District Forum in this regard.
The Ld. Advocate for the revisionists placing reliance to the decision in the case of BNM Educational Institution & Anr. (supra) has tried to convince that being nurses of a hospital, if there is any negligence, the vicarious liability will be attributed upon the master i.e. the hospital and no compensation may be awarded against nurses who use to follow the instruction of the doctor. Referring paragraph-34 of the decision in the case of Harjot Ahluwalia (minor) through his parents (supra) the Ld. Advocate has contended that the hospital may be held responsible for the acts of the employees but the nurses being poor employee having no direct relation with the patient/victim, the Ld. District Forum should have allowed the application.
I have gone through the decision referred above. Both the decisions related to a judgement after final hearing of the case. In the case of BNM Educational Institution & Anr. (supra) it was contended on behalf of a school that they having taken all due care cannot be held responsible for the neglect and callous conduct on the part of teachers, escorting the students. Rejecting the contention, the Hon'ble Supreme Court has held that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved. In the case of Harjot Ahluwalia (minor) through his parents (supra) it has been observed that the minor had suffered on account of the negligence, error and omission on the part of the nurse as well as the doctor in professional services rendered. As a consequence, it was held that the minor had suffered on account of negligence of doctor Dhananjoy as well as negligence of the nurse, Bina Mathew it follows that the hospital is responsible by the acts of its employees and so negligence can be attributed to the functionaries and authorities of the hospital.
In the instant case, the hearing is yet to begun. Even if it is assumed that following the principle of vicarious liability, the nurses may not be held directly responsible for the alleged negligence or deficiency, yet the presence of them would be required for proper adjudication of the dispute.
Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and taking into consideration of the facts and circumstances of the case, I do not find any impropriety or material irregularity in passing the order impugned. As a result, the revision petition fails.
Consequently, the revision petition is dismissed on contest. However, there will be no order as to costs.
The impugned order is hereby affirmed.
The parties are directed to appear before the Ld. District Forum on 09.07.2018 and to receive further order from the said authority. It is made clear that the observations, made hereinabove are all tentative and only for the purpose of disposal of revisional application and the Ld. District Forum will proceed to dispose of the complaint on merits in accordance with law.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur forthwith for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER