State Consumer Disputes Redressal Commission
Shilpa Mridul vs Mother And Child Hospital on 29 August, 2011
SHILPA MRIDUL VS MOTHER AND CHILD HOSPITAL AND ANR IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 29-08-2011 Case No.C-303/02 SHILPA MRIDUL, - COMPLAINANT W/o Shri Anu Mridul Aged 28 years R/O 71, Nehru Park, Jodhpur Versus 1. MOTHER AND CHILD HOSPITAL, Through its Administrator, Dr. Nalini Mahajan, New Delhi 2. DR. NALINI MAHAJAN, C/o Mother And Child Hospital, New Delhi - OPPOSITE PARTIES CORAM MS. KANWAL INDER PRESIDING MEMBER MS SALMA NOOR ... MEMBER Kanwal Inder ORDER
1. Vide this complaint filed on 05-05-1997 the complainant has prayed for Rs.20 lakhs as damages with interest and Rs. One lakh as litigation cost from the OP. Originally the case was filed before Hon'ble National Commission but was transmitted to this Commission vide order dated 17-09-2002 as Ld. Counsel for the complainant stated that he could not claim interest in view of the provisions of the Interest Act and the relief regarding the interest has to be deleted and it was observed that, that being the position, the claim is for Rs.20 lakhs.
2. The complaint is being contested by the OPs who have filed reply to which the complainant filed rejoinder. Evidence has been led by way of affidavits.
3. We have heard Ms Ashwarya Bhati, Counsel for the complainant and Shri Amit Kumar Pandey, Counsel for the OPs and have gone through the record.
4. There is no dispute regarding the facts that on 06-05-1995, the complainant was admitted as an indoor patient in the OPs Nursing Home. After waiting for sometime for normal delivery, she was sought to be taken from her room to the operation theater on the next higher floor in collapsible stretcher. As misfortune would have it, the power supply went off and the lift in which she was to be taken to next higher floor had to be operated manually. The lift was a normal passenger lift. Soon after reaching near the lift, the attendant went into it first and the complainant was made to fold legs so that the stretcher could be partially folded to fit into the lift. While this was being done, the lift started moving up.
The forehead of the complainant struck against the lintel of the lift door injuring her forehead just near the right eye.
The complainant as reflex action put her palm over her head presumably to avoid injury. This resulted in her thumb being injured, the flesh covering was peeled off. All this happened in seconds. The lift stopped half way between two floors, sister and sisters-in-law of the complainant who were standing outside pulled her from the stretcher, little realizing that they may fall in the well of the lift. In this process, the complainant fell down from almost 3-4 feet and it was in this condition that she delivered a female child shortly thereafter. The OPs Nursing Home extended full medical aid to her and declined to accept payment for services rendered to her by the OPs for treatment of injuries and delivery. After being discharged from the nursing home, the complainant filed Writ Petition before Honble Supreme Court claiming Rs.10 lakhs as compensation but the petition was dismissed as the Honble Court was of the view that the complainant should move appropriate Forum for getting compensation and damages for injuries caused to her.
5. The complainant has come up with this complaint alleging culpable negligence on the part of the management of the OPs Nursing Home stating that the primary and basic reasons which has resulted in her sustaining injuries is the fact that the lift serving patients in the OPs Nursing Home is sufficient to serve 4-5 persons, it cannot serve a hospital or a nursing home in which patients in stretcher are required to be taken from one floor to another. Second reason is the lack of communication system between the one operating the lift from top of the building and the one manning the lift at the floor from which it is to go upwards. According to her, one operating the lift from the above could not see what was happening down below. Thinking that perhaps he has not pulled the lift with sufficient force, he released the lift and again pulled up with still greater force and again pulled up with still greater force and hence forehead of the complainant struck the lintel of the outer door of the lift three times.
6. The OPs have denied all this and have pleaded that the accident did not occur due to manual operation of the lift. The version of the OPs is that at the time when the complainant was being moved in the lift, there was no electricity and the lift was to be operated manually after she was fully adjusted in the lift.
While this was being done, and before she could be fully moved into the lift, the power supply came on for few seconds only and went off again. During this brief period of few seconds, the lift started moving up and the head of the complainant struck against the lintel only once. The OPs have pleaded that this movement of lift was strange, sudden, beyond its control and due to reasons which could not be known or discovered inspite of subsequent investigations. Such as incident never happened either before or after the incident in question. The lift was manually brought down only once after the accident. It is impossible to manually move the lift up and downs three times within seconds as alleged by the complainant. The size of the lift is adequate and proper considering the size of the hospital and nature of services provided by it. The lift has been duly licensed under the provisions of the Delhi Lift Rules 1942 and has duly been maintained.
7. In Rejoinder the complainant has averred that as per National Building Code of India 1983, minimum size of a hospital lift has to be one which could accommodate 15 persons and carry 1020 kgs., while the lift in question is a mere passenger lift.
It is a mere accident that no other patient suffered injury due to operation of this lift. It was not as if the lift fully came down to floor and was then lifted. It came a little down of the Intel and was again pulled in between and it is in this manner that it was operated up and down three times. In order to see that her head does not strike again at Intel, her relatives pulled her out, but the injuries sustained by her on her head were not on that account.
8. From the above version of the parties it is to be noted that there is no dispute between the parties regarding the fact that the complainant suffered injuries on her head due to her head striking against Intel of the outer door of the lift, as the lift suddenly went up while she was still in the process of being adjusted in the lift. It is case of both the parties that it was sudden. The controversy of the head striking once or thrice is not so material in view of the fact that injuries suffered on that account on head and thumb are not disputed. It may be mentioned that the complainant testified about her head striking once saying that she had become unconscious thereafter.
9. According to the complainant, the sudden lifting up of the lift was due to the fact that the person manually operating the lift from above was not aware what was happening below. Though the OPs admit that at that time electricity was off and the lift was to be operated manually but according to them, sudden lifting up of the lift was due to the fact that electricity came for a few seconds. However that fact has not been substantiated, nor it is explained as to how the lift could move up when the doors were still open. They themselves term it as strange. According to them, despite investigation, reasons could not be known or discovered, meaning thereby that they have no justifiable reason to offer. In the circumstances version of the claimant that this sudden lifting was due to lack of communication system between the one operating the lift from top and the one manning the lift at floor is more probable, particularly when it is common case of the parties that the lift was to be operated manually.
10. It is not denied that lift was under management of the OPs. Rather it is their case that it was duly maintained. Hence merely stating that this happening was beyond their control will not absolve them of their responsibility/liability. Obviously this lift was being used in connection with providing medical service to the complainant. Therefore we hold that there was deficiency in service on the part of the OPs in this connection.
11. As regards size of lift, in the complaint, the complainant alleges that it could serve 4-5 persons but in affidavit she states that it was passenger lift of 5-6 persons. She further stated that it was not a hospital lift which is of minimum 15 persons. However, in this regard, the OP-1 have filed photocopy of the License authorizing them to work that lift installed in the premises of the OP Mother & Child Hospital.
Hence contention of the complainant in this regard are of no avail.
12. As per case history produced by the OPs, the complainant sustained (L) facial head injury due to accidental motion of the lift; face and thumb bandaged; fully conscious; eyelid/facial stitching and thumb stitching done; CT scan normal except for hoemotoma scalp; X-ray had fracture phaloum Lt. thumb; seen by Nuero Surgeon. Head injury chart shows that she was examined every hour and was found fully conscious.
Thus as per medical record produced by the OPs themselves, the complainant suffered injuries on head and thumb. There was no boney injury on head, but left thumb suffered fracture. Stitching were done which have left scar as per photographs placed on record. Thus it is evident on record that due to mismanagement of the manual operation of the lift, the complainant had undergone trauma and suffered injury on head and thumb.
13. According to the complainant her thumb has shortened and can never become normal, she finds it extremely difficult in stit,ching clothes and putting buttons, doing all other sundry duties as housewife and is facing difficulty in designing too. In this connection she has filed Annexure CW/2 to CW/4. Annexure CW/2 is photograph of her two thumbs. Annexure CW/3 is prescription of Dr. Amita Bhargava, M.D.D.M (Neurology), Jodhpur dated 28-06-2002. Annexure CW/4 is certificate of Dr. Mahendra Aseri, M.S. (Ortho), Jodhpur dated 15-07-2002. All these Annexures are to the effect that left thumb of the complainant is smaller than her right thumb, but no Medical Certificate of Disability has been proved on record as required by law and hence her version of shortening of left thumb alone is to be taken as having been substantiated.
14. For the reasons stated above, we come to the conclusion that due to deficiency in service on the part of the OPs, the complainant has suffered injuries in that lift episode resulting in shortening of her left thumb and scar on her face.
15. As per her own version, the incident in question has not adversely affected the complainant in her delivering the child for which purpose she was admitted in the OP hospital. The OPs extended full medical aid to her, declined to accept any charges for treatment given and delivery services rendered. Photocopies of her medical treatment reveal that she was examined by all the expert doctors and various tests were conducted. Her Head Injury Chart shows that she was examined every hour and after treatment she was discharged on 10-05-1995 and had no complication thereafter. However, that could not be a factor for denying her compensation as held in (1998) 4 Supreme Court Cases 39.
16. Keeping in view totality of the circumstances, the complainant is held entitled to recover from the OP No.1 hospital, Rs.50,00/- as compensation for trauma and sufferings undergone due to injuries sustained in the incident in question, Rs.1 lakh for scar left on her face and Rs.1 lakh for deformity on her left thumb. She is further entitled to reimbursement of her costs incurred in taking recourse to law, which in absence of any material placed on record in this connection, are assessed as Rs.40,000/-.
17. The preliminary objections raised in reply have not been urged during hearing nor in written submissions.
18. In reply, the OPs have pleaded that the OP-1 is entitled to claim a sum of Rs.25 lakhs as damages for defamation from the complainant as its reputation has been tarnished by publication of the defamory news item in the Times of India at the behest and instance of the complainant, and to set off that amount or portion thereof against the complainant to what the complainant may be entitled to. Photocopy of that news items narrating facts of the case has been placed on record. However, the alleged entitlement is not established as required by law nor this is the appropriate forum to be approached for the purpose nor there is any prayer for passing any such award.
19. In view of the above findings, we direct the OP No.1 to pay to the complainant Rs.2,50,000/- as compensation and Rs.40,000/- as cost within two months.
20. A copy of this order as per the statutory requirements be provided to the parties free of charge.
21. This file be consigned to Record room after needful is done.
(KANWAL INDER) PRESIDING MEMBER (SALMA NOOR) MEMBER av