State Consumer Disputes Redressal Commission
Kamla, vs Dr. Prem Shanker on 5 August, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 5th August, 2008 Complaint Case No.C-31/2000 1. Smt. Kamla, Widow of late -Complainant No.1 Shri Raghubir Singh Through Mr. S.S. Narwal, Advocate. 2. Kumari Rekha -Complainant No.2 D/o Late Shri Raghubir Singh, minor. 3. Kumari Manju, minor -Complainant No.3 D/o Late Shri Raghubir Singh 4. Master Sanjay, minor -Complainant No.4 S/o Late Shri Raghubir Singh 5. Master Naveen, Minor -Complainant No.5 S/o Late Shri Raghubir Singh Minors (2) to (5) through their mother, Natural guardian and next friend namely Smt. Kamla-Petitioner No.1. All residents of C/o Rajinder Master, Gali No.9-B, Swatantar Nagar, Narela, Delhi-110040. Versus Dr. Prem Shanker -Opposite Party S/o Shri Nanu Chand, Through R/o Gali No.7-A, Mr. Ranjan Bhatia, Swatantar Nagar, Advocate. Narela, Delhi-110040. And also at:- Gali No.6-A, Swatantar Nagar, Narela, Delhi-110040. CORAM: Mr. Justice J.D.Kapoor President Ms Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Alleging deficiency in service in as much as that wrong treatment and wrong injection was given by the OP-Doctor resulting in death of the husband of the complainant No. 1 and father of remaining complainants, complainants have through this complaint sought compensation of Rs. 19,00,000/-.
2. Allegations of the complainants in brief, are that on 30.6.1999 the deceased - Raghubir Singh came to the clinic of the OP in Gali No.6, Swatantar Nagar and the OP checked him and also gave him an injection and after the injection, the deceased started feeling upset (Ghabrahat) and at this he on the advice of the OP came out of the said clinic into the open air and started proceeding towards the house. One Mr. Karan Singh Ranga informed the OP that Raghubir Singh had collapsed in the Gali. Complainant No.1 immediately reached to Raghubir Singh her husband and found him dead. Shri Raghubir Singh had died due to the negligence of the OP and due to the giving of the wrong injection to him.
3. On 1.7.1999 the post-mortem was also conducted on the body of Raghubir Singh (husband of the complainant No.1) which also showed that Shri Raghubir Singh died due to the wrong treatment and wrong injection given by the OP to him.
Criminal case was also registered with P.S Narela vide FIR No.280/99 under Section 304-A I.P.C against the OP. The complainants sent a notice dated 6.12.1999 to the OP through regd. A.D and U.P.C. But the OP neither replied the same nor complied with the terms of the said notice. Damages/compensation to the tune of Rs.20,00,000/- (Rs. Twenty Lacs only) have been claimed.
4. The deceased Shri Raghubir Singh at the time of his death was aged about 41 years and was working as Care-Taker in NCT of Delhi and was drawing monthly salary of Rs.5025.00 (Rs. Five thousand and twenty five only).
5. That the OP is liable to pay the damages/compensation to the complainant to the tune of Rs.20 lacs but the complainants claim Rs. 19,00,000/ ( Rupees Nineteen lacs only )as damages/compensation.
Hence this complaint.
6. In his defence the OP come up with the plea that the deceased came to the clinc of the OP all alone and complained about some irritation. The deceased was having in his hand a polythene bag containing some medicines/capsules/tablets/injections. The deceased specifically told the OP that he was having the same problem for a considerable period and showed a prescription of a doctor and further apprised that the said medicines were being administered by him for the said illness. The OP immediately checked his blood pressure and monitored the blood pressure which was 120-180 at that time and gave him one capsule namely DIPIN and placed the contents of the capsule after removing the cover of the capsule beneath his tongue and thereafter administered ALPREX TAB. In order to reduce the anxiety as complained by the deceased in order to relieve him from the discomfort with hypertension and after a gap of minute or so, the OP injected an injection of Polybion. The OP advised him not to walk and to rush to nearby Nursing Home/Hospital.
7. At no point of time, the complainant No.1 came to the clinic of the OP alongwith the deceased and in fact it was negligence on the part of the complainant that they failed to take the deceased to the hospital after he found him to be lying on the road side.
8. The post mortem report clearly reveals that there was no negligence or carelessness on the part of the OP in attending the deceased. The deceased died due to angio-cordial insufficiency due to coronary artery deficiency. Had the deceased been given emergency treatment in the nearby hospital/nursing home, he could have been saved.
9. The factum as regards the medicines administered upon the deceased, as to whether the same were wrong or right, can only be adjudicated upon, by the medical experts. It was only at the instance and instructions of the deceased himself that the OP administered the said medicines only after sorting out the same from the plastic bag.
10. It is however, specifically denied that the deceased was hale and hearty at the time of his death as alleged.
11. Rejoinder and affidavit by way of evidence have filed by the parties.
12. As to the concept of medical negligence the criterion drawn from various decisions starting from Bolams case and followed by catena of decisions of Supreme Court are as under:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
13. There is no dispute that the OP-Doctor is not a qualified doctor and does not possess the degree to practice allopathic medicines. In this regard the Supreme Court in Indian Medical Association Vs. V.P. Shantha & Ors. III (1995) CPJ 1 (SC) referred to a decision held by it in Laxman Balakrishna Joshi Vs. Trimbak Bapu Godbole & Anr. 1969 (1) SCR 206, which reads as under:-
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his tasks a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require.
14. It was a grossest negligence on his part that he had undertaken the treatment of the deceased as he did not have ordinary skill to administer such medicines. It is not understandable as to how he gave the capsule Dipin and thereafter administered injection Alprex Tab. The deceased collapsed immediately in the gali.
15. As regards the remedy under the Consumer Protection Act it has nothing to do with the criminal negligence. Remedy under the Consumer Protection Act by virtue is additional remedy and not in derogation of any other law for the time being in force. This remedy includes compensation for mental agony and harassment5 due to the negligence of the opposite party arising from the charge of deficiency in service as defined by section 2(1) (g) of the Consumer Protection Act 1986 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
16. Even if the cause of death as per report of post-mortem was due to angio-cordial insufficiency due to coronary artery insufficiency still the fact remains that the OP had given such medicine and administered such injection which he was not competent to administer nor he had ordinary skill or knowledge to practice such medicine or administration of such injection that was followed by instant death and therefore the inference of complications arising from the medicine and injection causing death can be easily drawn. The deceased collapsed immediately on receiving the medicines. The after-effect and the shock suffered by the deceased might have caused the angio-cordial insufficiency due to coronary artery insufficiency. OP was not competent enough to handle the complications arising from the after effects or side effects of the medicine and injection administered by him and this, in medical parlance amounts to medical negligence and deficiency in service.
17. Taking over all view of the matter as well as the OP being a quack so far as allopathic medicine was concerned, we deem that a lump sum compensation of Rs. 1 lacs, as compensation for loss of life, mental agony and Rs. 10,000/- as cost of litigation would meet the ends of justice.
18. Payment shall be made within one month from the date of receipt of this order.
19. Complaint is allowed and disposed of in aforesaid terms.
20. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
21. Announced on 5th August 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj