State Consumer Disputes Redressal Commission
Sh. Zaithankima vs The State Of Mizoram Represented By The ... on 20 November, 2025
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MIZORAM
CONSUMER COMPLAINT NO. SC/15/CC/1/2024
1. Sh. Zaithankima
H/o Malsawmkimi (L)
R/o Tlangpui, Khawzawl District,
Mizoram
2. Shri Joshua Lalramdinthara (Minor)
S/o Smt. Malsawmkimi (L) Represented by his father Sh. Zaithankima R/o
Tlangpui, Khawzawl District, Mizoram
Versus
1. The State of Mizoram
Represented by the Chief Secretary to the Govt. of Mizoram
Aizawl.
2. The Secretary to the Govt. of Mizoram
Health & Family Welfare Department
Aizawl, Mizoram
3. The Principal Director
Health & Family Welfare Department
Govt. of Mizoram
Aizawl, Mizoram
4. District Hospital, Serchhip
Represented by the District Medical Superintendent
Serchhip, Mizoram
BEFORE :
HON'BLE MR. LALHMINGMAWIA, INTERIM PRESIDENT
HON'BLE MR. C. LALRINKIMA, MEMBER
HON'BLE MRS. P.C. VANLALREMRUATI, FEMALE MEMBER For the Complainants : Mr. C. Tlanthianghlima, Advocate For the Respondents : 1. Mr. B. Lalremenga, Advocate
2. Mr.Vanlaltanpuia, Proxy Counsel of Mr. B. Lalramenga, Advocate Date : 20.11.2025 JUDGEMENT & ORDER
1. The complaint was filed by Shri Zaithankima h/o Malsawmkimi (L), resident of Tlangpui, Khawzawl District, Mizoram under Section 47 of the Consumer Protection Act, 2019 against the State of Mizoram represented by the Chief Secretary to the Government of Mizoram and 3 Ors. The Complainant filed the complaint against 1 medical negligence and deficiency in service leading to the maternal death of Smt. Malsawmkimi w/o Shri Zaithankima, and a new born baby at District Hospital Serchhip on 03.12.2021. The Complainant prayed for awarding the amount of ₹1,20,00,000/- (Rupees one crore twenty lakhs only) along with interest @9% per annum till payment is made as pecuniary and non-pecuniary damages along with punitive damages and compensation for medical negligence and deficiency in service.
2. The deceased Smt. Malsawmkimi on being pregnant and near expected date of delivery approached the Serchhip District Hospital (herein after referred to as the District Hospital) and got herself checked up in OPD on 01.12.2021 and she was counselled for Normal Vaginal Delivery (NVD). The deceased was admitted in the District Hospital on 02.12.2021 at 10:50 a.m. On the day of her admission, Cervi Prime Gel was applied to induce labour for Normal Vaginal Delivery (NVD) and her condition as well as the baby were found to be stable. No delivery happened on 02.12.2021, Cervi prime gel was applied on her again on 03.12.2021 at 11:45 a.m. and the deceased Malsawmkimi delivered a baby boy weighing 3.8 kg at 8:30 p.m., however, the baby showed no sign of life at the time of birth. The deceased developed post- delivery complications soon after, the nurse on duty informed the Gynaecologist at 8:55 p.m. The Gynaecologist attended the patient at 9:20 p.m. and informed the District Medical Superintendent (herein after referred to as DMS) about the critical maternal condition of the deceased. The DMS and the Gynaecologist attended the deceased, but she was declared dead at 10:40 p.m. and recorded the cause of death as Post Partum Haemorrhage. Before the deceased Malsawmkimi approach the District Hospital, she had register herself in Health Sub-Centre, Tlangpui Village on 26.05.2021, 13.08.2021 and 18.11.2021. As per the photocopy of the ANTENATAL CARE Card, the deceased had last menstrual period on 15.03.2021 and the expected date of delivery was 22.12.2021. The deceased had 4 spontaneous abortions/miscarriages and 3 living issues.
3. Consequent upon the death of Smt. Malsawmkimi and her newborn child, public outcry in social media and complaints prompted the Government of Mizoram to institute a Magisterial Enquiry by Mr. Kumar Abhishek, IAS, District Magistrate, Serchhip, Serchhip District, Mizoram. Brief Summary of the Observations/Findings are:
(a) The patient was having history of 3 abortions and one pre term. Dr. Laltharzeli Fanai stated that the patient while on admission opted for the NVD. The doctor has stated in her written explanation that informed written consent for NVD was taken on 02.12.2021 at 10:50 AM. However, this is a general written consent which does not specifically mention about NVD or C-Sec.2
(b) After the first failed inducement of labour on 02.12.2021 upon application of cervi prime gel, the attendant claimed that they requested for C-Sec on 03.12.2021. The doctor denied the claim made by the attendant. It is evident that there is a clear contradiction in between the claims made by the attendant of Pi Malsawmkimi and the doctor and Hospital Staff with respect to the request for Caesarean Section. Moreover, there is no evidence of written consent for NVD given by the patient or the attendant at that time.
(c) The delivery was done by the staff nurse and was not attended by the doctor. The Doctor was called by the staff nurse at 8:55 PM and the doctor reached the spot and attended the patient at 9:20 PM.
(d) Upon perusal of the statements and random statements taken from the previous cases of deliveries at the District Hospital, there is preponderance of possibility that the hospital staff, at some times, behave rudely and not in a professional manner with the patients.
(e) On the point of enquiry of indulgence in any kind of intoxicating substance by the doctors or the staff, there is no evidence to prove this.
(f) In order to ascertain the propriety of the medical procedure followed, the undersigned is of the opinion that an independent team of doctors, from outside the district, may be formed.
4. As per the recommendation of the report of the Magisterial Enquiry, the Government of Mizoram instituted an independent Team of Doctors to ascertain whether a propriety of medical procedure is followed or otherwise in the incident leading to the maternal death of Smt. Malsawmkimi of Tlangpui Village and her newborn child and the death of the newborn child of Pi Vanlaldinpuii of Sialsir Village in District Hospital, Serchhip with the following Terms of Reference:
(1) To ascertain whether there is any procedural lapse on medical treatment received by the patients.
(2) Level of Monitoring of the patient and details record of monitoring. (3) Whether special care was given to the pregnant women based on their obstetric history.
(4) Are there any alternate medical procedures that could be undertaken to avoid such incident?
(5) Why a cervi prime gel was used to induce labour for the second time to aggravate the patient's condition?
OBSERVATION (1) After investigating the events leading to the maternal death, we did not find any procedural lapse on the medical care given to the deceased patient.
3(2) Details of patient monitoring is enclosed in the photocopy of the patient's file. The probable cause of the patient deterioration which is a concealed bleeding resulting in hypovolemic shock makes it difficult for attending nurse and doctor to act immediately.
(3) Considering the past obstetrical history with 5 abortions and only 1 living issue, and advance age (40 years) in regards to obstetric, the patient should have been advised to attend higher centre - where operative (surgery) delivery can be performed 24/7.
(4) On using cervi prime gel, which is a uterine stimulant, that can cause uterine contraction and thereby dilating the cervix and mainly use for induction of labour (i.e. ripening of cervix) and the action of which lasted for 4-6 hours. The gap between insertion is around 12 hours, which will not cause hyperstimulation so as to aggravate the labour pain, and hence using 2 times with a gap of 12 hours will not worsen the labour pain.
The sudden deterioration of patient which probably due to hypovolemia resulting from silent tear/rent in the lower part of uterus, the bleeding of which is mainly concealed and not revealed which makes it difficult to diagnose immediately and although urgent, open laparotomy with subtotal hysterectomy might have saved the patient. But due to non-availability of Anaesthetist doctor who was out of station to attend IMA conference, and the patient's condition did not permit referral. Unfortunately, the patient succumbed and died at 10:30pm on 03/12/2022.
In regard to the stillbirth which was fresh stillbirth, the rent/tear in the uterine wall just before delivery may have cut off the oxygen and blood supply which may have cause the foetus to die just before delivery.
5. Aggrieved with the loss of a wife and a new born baby, the Complainant Shri Zaithankima filed a Writ Petition (C) with the Gauhati High Court (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) against the State of Mizoram represented by the Chief Secretary to the Govt. of Mizoram, Aizawl & 3 Ors. The Hon'ble High Court delivered a Judgement and Order (CAV) on 09.08.2023 in Case No. WP(C)/73/2022 held that there is clearly some element of negligence on the part of those who attended Smt. Malsawmkimi i.e., the attending nurses and the Doctor concern. It also held that the Government being the employer is vicariously liable for the acts of negligence committed by the Doctors, Nurses and Staff of the District Hospital, Serchhip, Mizoram. The Hon'ble High Court awarded ₹5 lakhs to the Petitioner as a palliative measure under the public law remedy and added that the same will not debar the petitioner from claiming any further compensation for damages or for deficiency of service before the appropriate forum.
6. Being aggrieved for losing the loved ones and a newborn baby, the deceased husband filed a Consumer Complaint under Section 47 of the Consumer Protection Act, 4 2019. In his complaint, the Complainant affirmed that the deceased Malsawmkimi and himself were lawfully wedded in accordance with Mizo Christian Custom on 31.10.2008. The deceased Smt. Malsawmkimi had one child born on 24.01.2004 before her marriage to the Complainant No.1. They had two issues out of their wedlock born on 10.06.2009 and 09.04.2015. The Complainant No.1 is engaging in manual works to earn their living and continue to do so even after the demise of his wife to sustain their living. The Complainant No.2 is living with his uncle (the Complainant No.1's younger brother) who are living in Aizawl, Mizoram to have a better education than their own village.
7. The Complainant in his submission stated that the deceased Smt. Malsawmkimi, 40 years of age on being pregnant had registered herself at Health Sub-Centre, Tlangpui Village managed by Health Worker(s) on 26.05.2021 being registration No.5. She had regular check up at the Sub-Centre on 26.05.2021, 13.08.2021 and on 08.11.2021. Being in a remote village, the deceased did her best to take all necessary precautions and injections prescribed to her. No complication or problem was reported in the Antenatal Visits records. The deceased already had 4 spontaneous abortions/miscarriage and 3 living issues attended the OPD at the District Hospital, Serchhip, Mizoram on 01.12.2021. accompanied by her sister. The District Medical Superintendent reported that she was counselled for Normal Vaginal Delivery (NVD) and was admitted on 02.12.2021 at 10:50 a.m. by Dr. Laltharzeli Fanai, Gynaecologist of District Hospital, Serchhip. The condition of the deceased and her baby were found to be stable, Cervi Prime Gel was applied on her to induce labour for NVD on the day of admission. Since no delivery on 02.12.2021, Cervi Prime Gel was again applied on her the next day i.e. 03.12.2021 and she had delivered a male child at 8:30 p.m. The newborn baby was weighing 3.8 kg, but the baby did not show any signs of life at birth. The nurse on duty Smt. Melody Zoremsangi informed the Gynaecologist at 8:55 p.m. as the deceased developed post-delivery complications. The Gynaecologist attended the patient at 9:20 p.m. and informed the DMS about the critical maternal condition, the deceased was attended both by them. However, she was declared dead at 10:40 p.m. The direct cause of death was recorded as Post Partum Haemorrhage. There was, in the recent past on 31.10.2021, the newborn son of Smt. Vanlaldinpuii of Sialsir Village was declared dead at the same hospital. There were numerous complaints and public outcry in social media about the negligence and lapses committed by the Doctors & Hospital Staff of the District Hospital, Serchhip. As such the Opposite Parties instituted Magisterial Enquiry and an Independent Team of Doctors to look into the circumstances leading to the maternal and infant death.
8. The Complainant prayed for the following reliefs:
5(i) For an order declaring that the maternal death of Smt. Malsawmkimi and her newborn son at the District Hospital, Serchhip on 03.12.2021 was due to deficiency in service and negligence on the part of the Opposite Parties;
(ii) For an order declaring that the Complainants are entitled to award of compensation as damages from the Opposite Parties for the medical negligence and deficiency in service in looking after the deceased Smt. Malsawmkimi and her newborn son;
(iii) For an order directing the Opposite Parties to pay a sum of ₹1,20,00,000/- (Rupees one crore twenty lakhs only) along with interest @ 9% p.a. as pecuniary and non-pecuniary damages along with punitive damages and compensation for the medical negligence and deficiency in service leading to the maternal death of Smt. Malsawmkimi and her newborn son till payment is made in full to the Complainants;
(iv) For any other relief (s) as this Commission may deem fit and proper;
(v) For cost of the Complainant.
9. On behalf of the Opposite Parties, the Respondent No.3, Dr. Vanlalsawma, the Principal Director, Health & Family Welfare Department, Govt. of Mizoram, Aizawl, Mizoram submitted written statement objecting the allegation of the Complainants.
The OPs submitted that the present complaint is liable to be dismissed in limine as the same is barred by limitation. Referring to the proviso to sub-section (2) Section 69 of the Consumer Protection Act, 2019, this complaint is to be dismissed at the threshold on the ground of limitation. Moreover, it is illegal and wrong to extend its jurisdiction by this Hon'ble State Commission to entertain this instant complaint under Section 47 of the Consumer Protection Act, 2019 and the complaint is liable to be dismissed without further proceeding. The Opposite Parties further submitted their objection that:
(1) As per the record being maintained in the Hospital, the Obstetric Record of Malsawmkimi (L) are -
2004 - Normal Vaginal Delivery (NVD) - Full term delivery - Male/(Alive) 2009 - Abortion at 3 months 2012 - Abortion at 3 months 2014 - Abortion at 3 months 2015 - Normal Vaginal Delivery (NVD) - Full term delivery, Male (Alive) 2016 - Abortion/? Preterm delivery at 6 months 2021 - Present pregnancy.
(2) The Complainant No.1's deceased wife Malsawmkimi record in the Health Sub-Centre showed -
6 At 1st visit - Weight -51 kg BP-80/50 mm hg Hb-9gm%.
At 2nd visit - Weight -53 kg BP-80/50 mm hg Hb-9gm%.
At 3rd visit - Weight -58 kg BP-100/60 mm hg Hb-10gm%.
This clearly indicates that the patient Malsawmkimi (L) was suffering from Anaemia with Chronic Hypotension, and she was not sure of her last menstrual period while she is supposed to take ultrasound to determine expected date of delivery in early pregnancy. Anaemia is not corrected from 1st check-up to 2nd check-up. As per the Government protocol, she was supposed to attend PMSMA (Pradhan Mantri Surakshik Matriva Abhiyan) launched by MoHFW, Govt. of India Programme. The program aims to provide assured, comprehensive and quality antenatal care free of cost, universally to all pregnant women on the 9th of every month in either 2nmd trimester or 3rd trimester where high risk patients are identified and received free blood investigation. This clearly shows that Malsawmkimi (L) was not cautious about her pregnancy, saying she had no problem during pregnancy and the Sub-Centre records say otherwise.
(2) That during her pregnancy on 01.12.2021, Malsawmkimi (L) attended Gynae OPD in Serchhip District Hospital at Serchhip, Mizoram alone and she was not accompanied by her sister as claimed by the Complainants. On this particular day, an Ultrasound was conducted on Malsawmkimi (L) as she was not sure of her last menstrual period to determine her expected date of delivery which should have been done in the first trimester ideally. Even though she had three recurrent miscarriages, she delivered a male child by Normal Vaginal Delivery (NVD) in the year 2015 after her 3 miscarriages so she was a rightful candidate for Normal Vaginal Delivery (NVD) and she had no absolute indication for Caesarean Section.
(3) That there is only one Gynaecologist in Serchhip District catering all the district population. As per protocol, Normal Vaginal Delivery (NVD) is usually conducted by Nursing staff as they are fully trained and qualified to perform Normal Vaginal Delivery and Mid Wifery. Doctors are informed usually when there are delivery complication and when instrumental delivery is required.
(4) That as per Gynaecologist's statement, Malsawmkimi (L) was explained the risks and benefits of Normal Vaginal Delivery (NVD) and Caesarean Section in her own language. The Ultrasound examination was conducted on 1st December, 2021 as she was not aware of her expected date of delivery and the Ultrasound report showed that her Expected Date of Delivery (EDD) was between 2nd - 5th December, 2021. Malsawmkimi (L) opted for vaginal delivery as she already had two previous normal vaginal deliveries. One (1) being after 7 3 recurrent Miscarriages and she is a rightful candidate to undergo Normal Vaginal Delivery (NVD).
(5) That the claim made by the Complainants requesting Caesarean Section is neither heard nor known to/by the Gynaecologist and Nursing Staffs. On the day of her admission, Late Malsawmkimi's vitals were normal, her history and maternal age merely is not an indication for Caesarean Section. Hence, she was expected to have an ability to be managed in the District Hospital. Post-delivery complication was not anticipated and there was no absolute indication for referral to higher Centre at the time of admission and consent for further management was taken at the time of admission.
(6) That as per the Department Enquiry Report, the Team did not find any procedural lapse on the medical case given to the deceased patient. Late Malsawmkimi's history of four (4) Miscarriages and advanced age is not an absolute indication for Caesarean Section and it does not imply that surgery should be performed. It is a retrospective assessment and referring to higher Centre might be a better option. The cause of death was Post-Partum Haemorrhage (PPH) which she developed post-delivery and not because Caesarean Section was not performed. Post-Partum Haemorrhage (PPH) can be developed by any patient (Caesarean Section or Normal Vaginal Delivery) and was never anticipated. Like what the Departmental Enquiry Report had stated, every possible management was given to the patient at that time as the resource permitted. At the time of admission, Malsawmkimi (L) did not present any conditions/signs which could not be managed at District Hospital at that time. As such, she was not referred to the higher Centre. The patient already had two (2) live births which were both Normal Vaginal Deliveries. So, Normal Vaginal Deliveries was the plan for her in this pregnancy. In fact, the absence of anaesthetist does not contribute to any reason for her untimely demise. There was no lack of care and caution on the part of the attending Doctor and staffs, which could be seen from the following sequence of events -
(a) The patient Malsawmkimi (L) came on her first check up in the Gynae OPD on 01.12.2021 and was admitted on 02.12.2021 as per her request.
(b) The Ultrasound was conducted for her on emergency basis by the Gynaecologist after OPD as she came only on her late stage of pregnancy and she was not aware of her date of delivery.
8(c) The patient reported in Gynae Ward on the next day following her admission (i.e. 02.12.2022) on her request.
(d) Full examination of Blood Pressure, Pulse Rate, Fetal Heart Sound, Per Abdominal examination, Pelvic examination was done on this day.
(e) On the day of admission -
Per Abdomen (P/A) - Fetal Heart Sound (FHS) - 146/min Per Vaginal (P/V) - Os-2cm Cx (Cervix) - Px (Partially) effaced Membrane -(+) Station -High up
(f) Induction of labour was done with Cerviprime Gel.
(g) The Patient Could not achieve active labour.
(h) The Patient was in Latent Labour at the time of admission.
(i) Induction of Labour was repeated on the next day i.e., 3.12.2022 at 11:30 AM, and she achieved active labour at 4:00 PM.
(j) Partogram (Graphical Information about the progress of labour) was plotted as soon as she progresses into Active Labour, she achieved full dilation at 7:30 PM and was taken for delivery. Throughout her labour pain she was accompanied by Female Attendant and Nurse.
(k) Delivery was conducted by qualified Nurse. Doctor was informed as Soon as she developed post-delivery complication, treatment was started immediately as advised by the Gynaecologist over phone before she even reached the Hospital.
(l) District Medical Superintendent was also informed and he attended immediately.
(m) The condition of the patient worsened very rapidly unlike usual post-partum Haemorrhage (could be due to associated conditions like DIC (Disseminated Intravascular Coagulation).
Note: Blood sample collected from patient on 3/12/2021 is still preserved and does not show Sign of clotting.
(n) The patient was collapsed while she was prepared to be taken inside Operation Theatre for exploration.
9(7) That during such period, the Anaesthetist was on authorized Casual Leave from 2nd to 3rd December, 2021 for IMA Conference, Aizawl. Moreover, not Performing Caesarean Section is not the direct leading cause of the Post- Partum Haemorrhage and the death of the patient, It was not done as there was the indication and not due to non-availability of the Anaesthetist. Hence, it is the humble submission of the OPs that the attending Doctors and Staff cannot be held negligence against the unfortunate demise of Malsawmkimi (L). There is no proof of evidence that the outcome would have been different on the patient if surgery was performed.
(8) That according to Smt. Melody Zoremsangi, Staff Nurse who conducted delivery, she did not admit in front of Magisterial Inquiry that there was no Post- Partum Haemorrhage, rather she mentioned that the Post-Partum Haemorrhage she witnessed was different from the Post-Partum Haemorrhage she experienced before. As normally practised in Mizoram, Normal Delivery is conducted by Nurses as they are qualified and trained in conducting in Normal Delivery and Mid-Wifery and a doctor is informed and attended only when there is complication in the process. There is only one Gynaecologist in the District Hospital at Serchhip catering all the District Population. Moreover, Pelvic examination shows that late Malsawmkimi's Pelvic was roomy and Cervix was favourable and hence, Difficult Vaginal delivery and prolonged labour was unlikely.
(9) The Doctor was called by Staff Nurses at 8:55 PM. However, she was not aware of her phone call as she was in the kitchen having her dinner and her phone was charging in the bedroom. She responded after a few attempts. All necessary immediate intervention required were initiated as per the Doctor's advice which started from 9:10 PM as per Nurses' record over phone and necessary instructions viz. two wide bore i.v. cannula, Blood Transfusion, uterine massage/tamponade, IV Fluid were given as per protocol for management of Post-Partum Haemorrhage to Nurses on duty and she reached the Labour Room at 9:20 PM.
(10) The OPs submitted that payment of Rs.5 lakh to the Complainant No.1 as per the Hon'ble High Court's Judgment & Order dated 09.08.2023 passed in WP(C) No. 73 of 2022 does not mean that the OPs herein admitted to the negligence, liability and deficiency in service on the unfortunate demise of Malsawmkimi (L). In fact, as stated by the Hon'ble High Court, awarding of Rs. 5 lakh in favour of the Petitioner in WP(C) No. 73 of 2022 as a palliative measure only under the public law and it does not imply/indicate that the Hon'ble High 10 Court confirmed the negligence and deficiency in service on the part of the OPs; as such allegation on medical negligence needs to be proved by taking an evidence as per law in the proceeding like the present Consumer Complaint wherein the Complainants claiming for compensation under the private law. Hence, the Complainants cannot take any advantage of the said Judgment & Order dated 09.08.2023 passed in WP(C) No. 73 of 2022 in the present claim which they are making in this Consumer Complaint.
(11) The OPs submit in this regard that there is no iota of reason as to why Section 47 of the Consumer Protection Act, 2019 should be invoked by the Complainants, in as much as, there is no goods or services exceeding Rs. 1 Crore paid as consideration by the Complainants to the OPS. In view of this, there can be no 'deficiency' in service between Malsawmkimi (L) or the Complainants and the OPs herein. As a result, the present Consumer Complaint is liable to be rejected outright.
(12) As submitted above, there can be no cause of action in the present case in favour of the Complainants. Even on assuming for a moment but not admitting that there is such cause of action as alleged by the Complainants, the present Complaint should have been presented within a period of two years from the date of the cause of action. However, the present Complaint has been filed only in the month of February, 2024 which was beyond the period of limitation. The Complainants, although took the ground of exclusion of the limitation during the Covid-19 pandemic by the Hon'ble Apex Court, are still obligated to explain the delay and the reason thereof as to why the present Complaint is liable to be rejected and dismissed.
10. In the course of the proceedings, the Ops learned counsel Mr. B. Lalramenga propounded the question of law for not filing the complaint within 2 years as per the limitation provision in terms of Section 69 of the Consumer Protection Act, 2019 since the cause of action happened in 03.12.2021 whereas the present complaint was filed on 26.02.2024 without condonation application. In absence of a member who is having judicial background in the State Commission, the learned counsel put forward the question of law in regard to limitation. Both the learned counsels submitted arguments in writing. The Complainant's counsel Mr. C. Tlanthianghlima relied his arguments and filing the complaint after 2 years from the cause of action happened on the Hon'ble Apex Court order dated 10.01.2022 in "In Re: Cognizance for Extension of Limitation" Suo Motu Writ Petition (C) No. 3 of 2020 whereby the period from 15.02.2020 till 28.02.2022 was excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. The learned counsel of the Opposite Parties argued that the Complainants 11 failed to file any separate application for condonation of delay in filing the present complaint by taking the ground of the exemption/exclusion of the limitation period during Covid-19 or other ground(s) which the Complainants may deem appropriate. The OPs counsel also quoted Section 5 of the Limitation Act, 1963 which says, "An appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." It is argued that it is obligatory for the Complainants to show sufficient cause as to why they could not file the complaint within the period of 2 years by filing separate application for condonation of delay. However, the Complainants did not file any application for condonation of delay as per Section 5 of the Limitation Act, 1963. The OPs counsel relied on the order of the National Consumer Disputes Redressal Commission dated 07.11.2023 on Ireo Pvt. Ltd. vs Sujeet Jha & Anr in Review Application No.350 of 2023.
11. On perusal of the submissions of both the counsels, we do not find any complex question of law regarding limitation period which may be prompting this Commission to refer the matter to the National Commission in absence of the President and Member with judicial background in the State Commission. The Order of the Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 (Supra) is cleared about the excluded period and no complexity found. The cause of action happened on 03.12.2021 during the excluded period from 15.02.2020 till 28.02.2022; this complaint was filed on 26.02.2024 well in time whereby deducting the excluded period. Moreover, Section 12 of the Consumer Protection (Consumer Commission Procedure) Regulation, 2020 provided that, "....does not have a member with judicial background and any complex question of law arises and there is no precedent to decide the law point..." The order of the Hon'ble Supreme Court in "In Re: Cognizance for Extension of Limitation" Suo Motu Writ Petition (C) No. 3 of 2020" (supra) is very cleared. We have allowed the complaint to proceed on.
12. On proceeding further, both the learned counsels submitted proposals for framing issues. We had frame issues base on the proposal submitted by the respective counsels as under:
1. Whether the complaint is maintainable or the cause of action in favour of the complainant and against the opposite party.
2. Whether the complainant suffered from any undisclosed disease during her pregnancy as per her antenatal visits record.12
3. Whether the complainant's doctor and staffs of the District Hospital, Serchhip had committed negligence and deficiency in taking care of the deceased Malsawmkimi.
4. Whether a Gynaecologist was present at the time of delivery of the baby.
5. Whether the complainants are entitled to the relief(s) claimed. If so, to what extent.
13. For the lone witness of the Complainants, the Complainant No.1 Shri Zaithankima himself stand for witness and he was crossed examined by Mr. B. Lalramenga, learned counsel for the Opposite Parties. The Complainant submitted an I.A. registered as I.A. No.2 of 2025 in SCC No.1 of 2024 for exhibiting the complaint petition and signatures of the Complainant No.1 and was allowed by this Commission. The Opposite Parties produced five witnesses. The witness No.1 is Smt. Melody Zoremsangi, Serchhip who was on duty in a night shift in the District Hospital, Serchhip. The Opposite Parties produced Dr. Laltharzeli Fanai, MS Obstetrics and Gynaecologist who was working as Gynaecologist in the District Hospital, Serchhip at the relevant time as their witness No.2. Witness No. of 3 of the OPs, Dr. Lalnunhlima Khiangte, Pathologist (DCP) who was working in the District Hospital, Serchhip at the relevant time was produced. The OPs' witness No.3 was in-charge of District Medical Superintendent since the DMS was on leave during the relevant period. Witness No.4 of the OPs Dr. ZD Lalmuanawma, who is serving as current District Medical Superintendent of the District Hospital, Serchhip. The OPs also produced witness No.5 Mr. Lalnunfela s/o Khiangthuama, who works as a Health Worker at Tlangpui Sub- Centre - Health and Welness Centre (SC-HWC) from 2019 till date. All the OPs witnesses except No.5 were crossed examined by the Complainant's counsel and re- examined by the OP's counsel whenever necessary. However, the counsel of the Complainants declined to Cross Examine witness No.5 of the OPs and by order of this Commission dated 03.11.2025, evidences were supposedly closed and final hearing was reserved on for 13.11.2025 after submission of brief or full written arguments on 10.11.2025.
14. We have perused the documents on record. We also heard arguments of the learned counsel Mr. C. Tlanthianghlima on behalf of the Complainants and Mr. Vanlaltanpuia proxy learned counsel of Mr. B. Lalramenga on behalf of the Respondents. We also perused their submissions in the written arguments. The learned counsel of the Complainants argued that:
(1) The deceased Smt. Malsawmkimi on being pregnant registered herself at Health Sub-Centre, Tlangpui on 26.05.2021 and she had regular checkups at the Sub-Centre. She had complied with and had taken all necessary precautions 13 and injections prescribed to her and she had no problem during her pregnancy as can be seen from her antenatal visits record. The deceased had Smt. Malsawmkimi (40 Years) already had 4 spontaneous abortions/miscarriage, and 3 living issues. She had attended the OPD at District Hospital on 01.12.2021, she was counselled for Normal Vaginal Delivery (NVD). In absence of the Anaesthetist in station to arrange Caesarean Section (C-Sec), the Nurse persuaded her to go for NVD by saying that physical activity will not be hampered after delivery as the patient will have to engage in manual agricultural works later on. She was admitted in the hospital on 02.12.2021 at 10:50 a.m. by the Gynaecologist of District Hospital, Serchhip. On the day of admission, Cervi Prime Gel was applied on her to induce the labour for Normal Vaginal Delivery (NVD) and her condition as well as the condition of the baby was found to be stable. Since there was no delivery on the night of 02.12.2021, Cervi Prime Gel was again applied on the next day, i.e., 03.12.2021 and delivered a male child 3.8 kgs at 8.30 p.m., but the baby did not show any signs of life at the time of birth. During the delivery, the Gynaecologist was not present. As the patient developed post-delivery complications, the nurse on duty informed the Gynaecologist at 8:55 PM. The Gynaecologist attended the patient at 9:20 p.m. and informed the District Medical Superintendent (DMS) about the critical maternal condition. She was declared dead at 10:40 p.m. The learned counsel based his arguments on the report of the Magisterial Enquiry Report of the Serchhip District Magistrate, Serchhip, Mizoram.
(2) The learned counsel of the Complainants further argued that as per the Departmental Enquiry Report that no procedural lapse was found on the medical care given to the deceased patient, however, considering the past obstetrical history with 5 abortions and only 1 living issues and advance age (40 years), she should have been advised to attend higher centre where operative (surgery) delivery can be performed 24/7. It is an established principle of law that a doctor is not guilty of negligence if he/she has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. However, in the instant case, the attending doctor & staffs had committed negligence thereby causing deficiency in service by considerably failing to act in accordance with the practice accepted. They had negligently failed to take into consideration the obstetrical history as well as her advance age by advising her to attend higher centre where operative (surgery) delivery can be performed 24/7 even though they were well aware that surgery (C-Sec) could not be performed at the District Hospital, Serchhip during that period as the Anaesthetist was not in station. It is a well-established law that a hospital 14 is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. Hence, it can be safely concluded that the Respondents are fully responsible for the tragic death of the deceased Smt. Malsawmkimi and her newborn son who had died at birth.
(3) The Complainant's counsel further submitted that the Hon'ble Gauhati High Court, Aizawl Bench in writ petition No. W.P.(C) No.73/2022 filed by the Complainant directed the Respondents herein to pay ₹5.00 lakhs to the Complainant No.1 as compensation under public law remedy. At the same time, the Hon'ble High Court granted liberty to the Complainant No.1 herein for claiming further compensation for damages or deficiency of service before the appropriate forum. Thereafter, the Respondents having admitted their negligence, liability and deficiency in service had complied with the Judgement & Order dated 09.08.2023 as can be seen from the letter address to the Registrar, Gauhati Hight Court, Aizawl Bench.
(4) The Complainant stated that his deceased wife had no problem and taken necessary precautions, viz. injection prescribed to her.
(5) In regard to the issues framed, the learned counsel submitted as under
in the written arguments that:
Issue No.1: Whether the complaint is maintainable or the cause of action in favour of the complainant and against the Opposite Party.
With regard to the present issue, the Respondents have raised strong objections against the maintainability of the present Complaint. Hearing on maintainability was conducted on 03.02.2025 wherein the Ld. Counsels for both the parties were heard at length and the Ld. Counsels had thereafter submitted their respective submissions in writing on 11.03.2025. Consequently, this Hon'ble Commission vide Order dt.02.04.2025 maintained the complaint and had proceeded with the case. Further, a plain reading of paras No.14 & 15 of the Complaint (Ext C- 16) clearly shows that the complaint is maintainable and there is cause of action in favour of the Complainants and against the Opposite parties. Hence, this issue needs to be decided in favour of the Complainants.
Issue No.2 : Whether the Complainant suffered from any undisclosed disease during her pregnancy as per her antenatal visits record.
The Complainant No.1 Shri Zaithankima in Para 3 of his Examination-In-
Chief had deposed as follows:15
"3. On being pregnant, my wife registered herself at Health Sub-Centre, Tlangpui Village on 26.05.2021 bearing Registration No.5. She had regular check up at the Sub-Centre under the Health Worker(s) on 26.05.2021, 13.08.2021 and on 08.11.2021. She had complied and had taken all necessary precautions and injections prescribed to her and she had no problem during her pregnancy as can be seen from her antenatal visits record."
He exhibited the Registration Card, i.e., the antenatal visits record of Smt. Malsawmkimi (L) at the Sub-Centre as Ext. C- 5. He further stated in Para 9 of his Cross-examination that his wife Smt. Malsawmkimi had no health problem or any complaint when she was admitted in the District Hospital, Serchhip for delivery of baby.
Further, Dr.Laltharzeli Fanai (OP Witness No.2) in Para 7 of her cross-
examination had deposed as under:
"7. It is a fact that there are no complications developed by Smt. Malsawmkimi when I admitted her."
The deposition of Dr. Laltharzeli Fanai (OP Witness No.2) was also corroborated by Shri Lalnunfela (OP Witness No.5) who in Paras No.3 & 4 of his Examination-In-Chief stated that Smt. Malsawmkimi had no complaints or problems during her visit to the Sub-Centre. This clearly proves that the deceased Smt. Malsawmkimi did not have any complaints nor suffered from any undisclosed disease during her pregnancy. In other words, the deceased Smt. Malsawmkimi did not have any undisclosed disease during her pregnancy as per her antenatal visits record. Hence, this issue is to be decided in favour of the Complainants.
Issue No.3 : Whether the complainant's doctor and staffs of the District Hospital, Serchhip had committed negligence and deficiency in taking care for the deceased Malsawmkimi.
With regards to the present issue, the Complainants had proved the negligence and deficiency in taking care of the deceased Malsawmkimi in two folds.
Firstly, the Complainant No.1 Shri Zaithankima by reproducing the relevant abstract of the Departmental Enquiry Report (Ext.C-12) in Para No.8 of his Examination-in-Chief had mentioned that the doctor and staffs of the District Hospital, Serchhip had committed negligence and deficiency in taking 16 care of his deceased wife. The relevant Observation made by the Departmental Enquiry Report (Ext.C-12) which was relied by the Complainants Witness No.1 may be reproduced below:
"3.84. Considering the past obstetrical history with 5 abortions and only 1 living issue and advance age (40 years) in regards to obstetric, the patient should have been advised to attend higher centre - where operative (surgery) delivery can be performed 24/7."
In this Connection, it is pertinent to rely on the cross-examination of Smt. Melody Zoremsangi (OP Witness No.1): (extract) "9. It is a fact that considering the advanced age and Obstetrical history of Smt. Malsawmkimi (L), her case is of complex pregnancy case.
10. It is a fact that the case of Smt. Malsawmkimi (L) being Complex pregnancy case, she should be given more attention and care....
11. It is a fact that there is no discussion or consultation made between me and the Gynaecologist to prepare the patient, Smt. Malsawmkimi (L) for NVD.
26. I admit Para 3 & 4 of the Observation made by the Departmental Enquiry (Exbt.C-12) "
Further, Dr. Laltharzeli Fanai (OP Witness No.2) in her cross-examination had deposed as under: (extract) "10. It is a fact that it is normal practice to refer patients to attend higher medical centre in case if there is any emergency or any complex complications which cannot be treated in the District Hospital.
32. I admit Para 3 & 4 of the Observation made in the Departmental Enquiry Report."
It is submitted that both the OPs Witnesses No.1 & 2 admitted the fact that the patient should have been advised to attend higher centre where surgery could be performed 24/7 considering her history and advanced age. In fact. the OPs Witness No.1 Smt. Melody Zoremsangi admitted that the case of Smt. Malsawmkimi (L) is a complex pregnancy case and she should be given more care and attention. Further, Dr. Laltharzeli Fanai also stated in Para No.10 of her cross-examination that it is normal practice to refer patients to attend higher medical centre in case if there is any emergency or any complex complications which cannot be treated in the District Hospital. However, she had failed to refer the patient to attend higher medical centre considering her 17 complex pregnancy case and her explanation given in Paras No.17 & 19 of her cross-examination is self-contradictory with Para No.32 of her cross- examination. It is an established principle of law that a doctor is not guilty of negligence if he/she has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. However, in the instant case, the attending doctor & staffs had committed negligence by considerably failing to act in accordance with the practice accepted as proper as they had negligently failed to take into consideration the obstetrical history as well as her advance age by advising her to attend higher centre where operative (surgery) delivery can be performed 24/7 even though they were well aware that surgery (C-Sec) could not be performed at District Hospital, Serchhip during that period as the Anaesthetist was not in station. In other words, in the absence of an Anaesthetist who is essential in performing surgery (C-Sec), the patient should have been advised to attend higher centre as rightly pointed out by the independent Team of Doctors in their Departmental Enquiry Report dt.24.03.2022, and the said not being done, a case of negligence/deficiency in service on the part of the attending doctor and staffs had been proved.
Secondly, both the OPs Witnesses No.1 & 2 knew that the Anaesthetist was on leave during this period. The fact that surgery was not performed on the patient/deceased could be attributed to the absence of the Anaesthetist. In this connection, it is submitted that the Anaesthetist had availed leave and no negligence was attributed to her, but the fact that the Gynaecologist had admitted the patient to undergo NVD fully knowing her complex conditions and her failure to consider the absence of the Anaesthetist is pure negligence on her part.
In this connection, the OP Witness No.1 Smt. Melody Zoremsangi in Para No.12 of her cross-examination stated that she knew that the Anaesthetist at District Hospital, Serchhip was on leave during this period. She further admitted in Paras No.13 & 23 of her cross-examination that surgery could not be performed in the absence of an Anaesthetist and the sole reason why surgery was not performed on Smt. Malsawmkimi was due to the absence of an Anaesthetist. The relevant cross-examination of the OP Witness No.1 Smt. Melody Zoremsangi may be reproduced below "12. I know that the Anaesthetist at District Hospital, Serchhip was on leave during this period.
1813. I know that Caesarean Section or any surgical operation cannot be conducted in the absence of an Anaesthetist.
23. It Is correct to suggest that Smt. Malsawmkimi could not be operated in the OT solely due to the absence of the Anaesthetist during this period.
27. Even though I deny the suggestion that the life of Smt. Malsawmkimi (L) could have been saved if surgery was performed after she had developed complications, however, I opined that she could have been saved if she was prepared for Caesarean Section at the time of her admission."
Similarly, the OP Witness No.2 Dr. Laltharzeli Fanai in Para No.11 had deposed as below:
"11. It is a fact that I know that the Anaesthetist was on leave during this period."
OP Witness No.2 Dr. Laltharzeli Fanai in Para No.12 of her cross- examination further stated that they used to perform life-saving operation in case of emergency. She further stated in Para No. 13 of her cross-examination that the presence of an Anaesthetist is not always compulsory at the time of performing life-saving operation, however, in Para No.14 of her cross- examination, she stated that life-saving operation was not performed on the deceased. Therefore, negligence and deficiency in taking care of the deceased patient is clearly established even on this ground alone. Hence, this issue needs to decided in favour of the Complainants and against the Opposite Parties.
Issue No.4: Whether a Gynaecologist was present at the time of delivery of the baby.
Regarding the present issue, the Complainants' lone Witness Sh. Zaithankima in Para 4 of his Examination-In-Chief had stated that as per his knowledge and information, a Gynaecologist was not present at the time of delivery, He exhibited the Magisterial Enquiry Report Ext.C-10 wherein the Magisterial Enquiry Report had clearly mentioned in Point No.3 of his Observations/Findings that the delivery was done by the staff nurse and was not attended by the doctor.
In fact, a plain reading of Paras No.3 - 5 of the Examination-in-Chief of Smt. Melody Zoremsangi (OP Witness No.1) clearly shows that she was the one who had delivered the baby of the deceased Smt. Malsawmkimi and the Gynaecologist was not present at the time of delivery. Further, Para No.11 of 19 the Examination-in-Chief of Dr. Laltharzeli Fanai (OP Witness No.2) confirms that she was not present at the time of delivery. Hence, this issue needs no further discussion.
Issue No.5: Whether the complainants are entitled to relief (s) claimed if so, to what extent.
It is well-established principle that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. In the present case, monetary compensation to the Complainants will be the only effective remedy to heal their wounds as they were caused non- pecuniary damages not limited to hardships, discomfort, disappointment, frustration and mental stress in life. Moreover, the multifarious services rendered by the deceased to her husband and minor son cannot be ruled out. The Hon'ble Supreme Court in the case of Arvind Kumar Pandey & Ors. Vs Girish Pandey & Anr. reported in (2025) 2 SCC 145 held that the role of a homemaker is as important as that of a family member whose income is tangible as a source of livelihood for the family. The activities performed by a home- maker, if counted one by one, there will hardly be any doubt that the contribution of a home-maker is of a high order and invaluable. In fact, it is difficult to assess such a contribution in monetary terms. In this connection, it is submitted that even though the deceased Smt. Malsawmkimi did not have any govt. job or regular monthly income, her role and contribution made to her husband and son is invaluable. In view of the above facts and circumstances and on perusal of the evidence adduced by the witnesses and Issues No.1 - 4 being decided in favour of the Complainants, the Complainants are entitled to the reliefs claimed. Hence, Issue No.5 is to be decided in favour of the Complainants.
15. The learned counsel of the Opposite Parties filed Written Arguments for the final hearing and contended that:
(1) Smt. Malsawmkimi (L) was suffering from Anaemia with Chronic Hypotension, and she was not sure of her last menstrual period while she is supposed to take ultra-sound to determine expected date of delivery in early pregnancy. Anaemia is not corrected from 1st check-up to 2nd check-up. As per the Government Protocol, she was supposed to attend PMSMA (Pradhan Mantri Surakshik Matriva Abhivan) launched by MOHFW, Govt. of India Programme.
The program aims to provide assured, comprehensive and quality antenatal care free of cost, universally to all pregnant women on the 9th of every month in either 2nd trimester or 3rd trimester where high risk patients are identified and 20 received free blood investigation. This clearly shows that Malsawmkimi (L) was not cautious about her pregnancy, saying she had no problem during her pregnancy; and her Sub-Centre records say otherwise. Even though she had three recurrent Miscarriages she delivered a male child by Normal Vaginal Delivery (NVD) in the year 2015 after her 3 Miscarriages so she was a rightful candidate for Normal Vaginal Delivery (NVD) and she had no absolute indication for Caesarean Section. As per protocol, Normal Vaginal Delivery (NVD) is usually conducted by Nursing staff as they are fully trained and qualified to perform Normal Vaginal Delivery and Mid Wifery. Doctors are informed usually when there are delivery complications and when instrumental delivery is required. The Ultrasound examination was conducted on 1st December, 2021 as Smt. Malsawmkimi (L) was not aware of her expected date of delivery and the Ultrasound report showed that her Expected Date of Delivery (EDD) was between 2nd - 5th December, 2021. Smt. Malsawmkimi (L) opted for vaginal delivery as she already had two previous normal vaginal deliveries. One (1) being after 3 recurrent Miscarriages and she is a rightful candidate to undergo Normal Vaginal Delivery (NVD).
(2) The Opposite Parties further contended that the claim made by the Complainants requesting Caesarean Section is neither heard nor known to/by the Gynaecologist and Nursing Staffs. On the day of her admission, Late Smt. Malsawmkimi vitals were normal, her history and maternal age merely is not an indication or Caesarean Section. Hence, she was expected to have an ability to be managed in the District Hospital. Post-delivery complication was not anticipated and there was no absolute indication for referral to higher Centre at the time of admission and consent for further management taken at the time of admission. As per the Department Enquiry Report, the Team did not find any procedural lapse on the medical case given to the deceased patient. Late Malsawmkimi's history of four (4) Miscarriages and advanced age is not an absolute indication for Caesarean Section and it does not imply that surgery should be performed. It is a retrospective assessment and referring to higher Centre might be a better option. The cause of death was Post-Partum Haemorrhage (PPH) which she developed post-delivery and not because Caesarean Section was not performed. Post-Partum Haemorrhage (PPH) can be developed by any patient (Caesarean Section or Normal Vaginal Delivery) and was never anticipated. Like what the Departmental Enquiry Report had stated, every possible management was given to the patient at that time as the resource permitted. At the time of admission, Smt. Malsawmkimi (L) did not present any conditions/signs which could not be managed at District Hospital at 21 that time. As such, she was not referred to the higher Centre. The patient already had two (2) live births which were both Normal Vaginal Deliveries. Hence, Normal Vaginal Deliveries was the plan for her in this pregnancy. In fact, the absence of anaesthetist does not contribute to any reason for her untimely demise.
(3) It is the stand of the Opposite Parties that there is no medical negligence on their part for the untimely demise of Smt. Malsawmkimi (L) and as such, they are not liable to pay any compensation to the Complainants.
(4) During the proceeding which was drawn in this Hon'ble State Commission, the Complainant No.1 produced his sole evidence and the Opposite Parties produced 5 (five) Witnesses. The points for determination in the instant case would be 'Whether the Opposite Parties had committed any medical negligence and deficiency in service against the deceased Smt. Malsawmkimi' and 'If the opposite Parties committed such medical negligence and deficiency in service against Smt. Malsawmkimi (L), whether they are liable to pay any compensation to the Complainants and to what extent'.
(5) The learned counsel for the Opposite Parties argues that there is no medical negligence and deficiency in service committed by the Opposite Parties against the deceased Smt. Malsawmkimi. The question of payment of any compensation to the Complainants does not arise. The Opposite Parties put forth the following points for arguments as under: -
(i) That the Complainants failed to prove that the deceased Smt. Malsawmkimi had been charged by the Opposite Parties for her admission to the District Hospital, Serchhip. In fact, the District Hospital, Serchhip is a Government's Hospital and as such, unless the Complainants could not prove that the alleged service rendered upon Smt. Malsawmkimi (L) was not free or charge, there can be no deficiency in service. In his cross-examination at Paragraph No.3, the Complainant No.1 deposed as, "It is a fact that while my wife, Malsawmkimi (4) was admitted in the District Hospital, Serchhip we did not pay any medical charges like private hospital." At any event, on assuming but not admitting that 'service' had been rendered to the said deceased, there İs no deficiency at all in that respect. Besides, as it can be seen from the available records and also from the evidences adduced during the proceeding, there is no reason to say that the concerned Doctor(s)/staff of the District Hospital, Serchhip had committed the medical negligence against the said Smt. Malsawmkimi (L). As a result, 22 the instant Consumer Complaint should be dismissed as it cannot fall within the purview of the Consumer Protection Act, 2019, particularly by reading Section 2(11) & (42) of the same Act of 2019.
(ii) That there is no iota of reason as to why Section 47 of the Consumer Protection Act, 2019 should be invoked by the Complainants, inasmuch as, there is no goods or services exceeding Rs. 1 Crore paid as consideration by the Complainants to the Opposite Parties. As a result, the present Consumer Complaint is liable to be rejected outright.
(iii) That the evidences on record have clearly revealed that there is no negligence on the part of the staff of the District Hospital, Serchhip in looking after Smt. Malsawmkimi (L) while she was admitted to the said Hospital. The Opposite Parties' Witness No.2 (Dr. Laltharzeli Fanai) had stated in her Examination-in-Chief as to how she had attended Smt. Malsawmkimi (L) with care and caution. Paragraph Nos. 7- 13 of her Examination-in-Chief may kindly be looked into as such depositions portrayed that there was no negligence on the said Doctor/Gynaecologist. The evidences on record squarely showed that the condition of Smt. Malsawmkimi (L) was good and she was seen by the Medical experts to be fit and able to deliver her baby in Normal Vaginal Delivery and no Caesarean Section would be required. However, it was due to the sudden unanticipated complications which happened to Smt. Malsawmkimi (L) after she delivered her baby that she had lost her blood too much thereby causing her untimely demise in the said Hospital. In this regard, the said Witness No.2 for the Opposite Parties deposed as, "...despite the possible intervention done the patient Malsawmkimi (L) could not be revived and was declared dead at 10:40 p.m. due to Disseminated Intravascular Coagulopathy (DIC) leading to Post-Partum Haemorrhage (PPH)." (Paragraph No. 13 of her Examination-in-Chief). This Witness also deposed in Paragraph Nos. 14, 15, 17 & 18 in her Examination-in-Chief that DIC which caused uncontrolled bleeding could further bring multi-organ failure which needs such treatment requiring specialized blood components. Since no such special treatment was available in the District Hospital, Serchhip District and inasmuch as the complications due to DIC happened suddenly without any expectation, there was no chance to save Smt. Malsawmkimi (L) from her untimely demise. The evidences of this 23 Witness No.2 (Medical Expert) for the Opposite Parties were not rebutted in her cross-examination.
In order to support the evidences of the said Witness No.2 for the Opposite Parties, the Witness No.3 for the Opposite Parties who is the Doctor (Medical Expert) who took the charge of the Medical Superintendent at the time of the incident had also deposed in Paragraph Nos. 3 & 4 of his Examination-in-Chief that when he was called by the said Witness No.2 on the night of 03.12.2021 informing him about the critical condition of Smt. Malsawmkimi (L), he rushed to the Hospital and he observed that she was attended and closely monitored by the said Gynaecologist and the Nurses. However, despite all the efforts given, Smt. Malsawmkimi (L) could not be saved. This Medical Expert i.e., Witness No.3 for the Opposite Parties deposed in Paragraph No. 5 of his Examination-in-Chief as, "That my observation in this regard is that the Patient collapsed and died too quickly for the amount of blood she appeared to lose. In my years of experience, patients who lose a small amount of blood can usually be saved with IV fluids and blood transfusions. In this specific case, despite all medical interventions, the Patient namely late Malsawmkimi's death was unusually sudden." The said Witness No.3 further deposed in Examination-in-Chief at Paragraph No.6 that as they found the unusual case of Smt. Malsawmkimi (L), the Blood Bank Lab Technician was asked to take the blood sample of Smt. Malsawmkimi (L) for cross-matching after the said patient died. Then, it was found that the blood sample of the deceased could not clot and it was haemolyzed (the red blood cells had broken down). The said blood sample was preserved at the District, Hospital, Serchhip and the blood sample of the deceased still could not clot, as the human blood should normally clot after a short interval. It was opined by the said Witness No.3 that late Malsawmkimi's death was caused by Disseminated Intravascular Coagulopathy (DIC) leading to Post-Partum Haemorrhage (PPH).
The said blood sample of Smt. Malsawmkimi (L) was also physically the same as Exhibit D-16. The Witness No.4 for the Opposite Parties who is holding the post of the District Medical Superintendent, District Hospital, Serchhip also deposed that the blood sample of Smt. Malsawmkimi (L) which was well preserved in the said Hospital was sent to Aizawl for production in this Hon'ble State Commission.
24These evidences of the said Witnesses of the Opposite Parties had clearly indicated the fact that the condition of Smt. Malsawmkimi (L) post her delivery of her baby had suddenly become worsened due to the said DIC which could not be controlled nor saved from her untimely death. Therefore, this further shows that there is neither medical negligence nor deficiency in service on the part of the concerned staff of the District Hospital, Serchhip.
(iv) That the evidences of the Witness No.5 for the Opposite Parties which was not rebutted at all as no cross-examination was done against him had clearly revealed that the said Smt. Malsawmkimi (L) had attended Tlangpui SC-HWC during her period of pregnancy and she had no complaint/problem in her pregnancy during her medical check-ups. Even the Witness No.2 i.e., Gynaecologist and the Nurse (Witness No.1 for the Opposite Parties) deposed that no risk or medical complication/problem was seen in Smt. Malsawmkimi (L) while she was admitted to the said Hospital for her delivery and that was why she was found to be fit for NVD, particularly by taking into account of her previous deliveries of babies by way of NVD. In fact, the Complainant No.1 in his cross- examination at Paragraph No.6 stated as. "It is a fact that my wife, Malsawmkimi (L) did not make any complaint regarding her health problem in the Tlangpui Health Sub-Centre during the period of her check-up." He also deposed in Paragraph No.7 of his cross-examination as, "It is a fact that I neither saw nor knew anything to indicate the ill- health or any medical problem in my deceased wife during the time of her pregnancy". He further deposed in Paragraph No.9 of his cross- examination "It is a fact that even when my wife was admitted in the District Hospital, Serchhip for delivery of a baby, she had no health problem or any complaint in that regard".
This Shows that there was no chance for the concerned staff of the District Hospital, Serchhip to ascertain or anticipate the complicated condition of Smt. Malsawmkimi (L) which happened suddenly after she delivered her baby. As such, the Complainants' allegation against the Opposite Parties for medical negligence is baseless and is not proved at all.
(v) That lastly but not the least, it may further be submitted that payment of ₹5.00 lakh to the Complainant No.1 as per the Hon'ble High Court's Judgment & Order dated 09.08.2023 passed in WP(C) No. 73 of 2022 25 does not mean that the Opposite Parties admitted to the negligence, liability and deficiency in service on the unfortunate demise of Smt. Malsawmkimi (L). In fact, as stated by the Hon'ble High Court, awarding of ₹5.00 lakh in favour of the Petitioner in WP(C) No. 73 of 2022 as a palliative measure only under the public law and it does not imply/indicate that the Hon'ble High Court Confirmed the negligence and deficiency in service on the part of the Opposite Parties; as such allegation on medical negligence needs to be proved by taking an evidence as per law in the proceeding like the present Consumer Complaint wherein the present Complainants are claiming for compensation under the private law. Hence, the Complainants cannot take any advantage of the said Judgment & Order dated 09.08.2023 passed in WP(C) No. 73 of 2022 in the present claim which they are making in this Consumer Complaint.
(vi) That in any view of the matter, the Consumer Complaint is liable to dismissed and rejected.
(6) The following citation (Judgment of the Hon'ble Supreme Court ie. Nivedita Singh vs Dr. Asha Bharti & Ors. reported in (2022) 16 SSC 724 also held that if a patient availed of any service free of charge from a government hospital, such patient/person would be outside the purview Section 2(1)(o) of the Consumer Protection Act, 1986 which now falls Section 2(42) of the Consumer Protection Act, 2019 inasmuch as there is no 'deficiency in service' in such matter. Therefore, it is the similar case that Complainants had also admitted to the fact that the alleged service rendered to Smt. Malsawmkimi (L) by the District Hospital, Serchhip was also free of charge and hence, there can be no question of deficiency in service which further means that the Complainants cannot make the present Consumer Complaint.
16. In regard to the issues No.1 framed by this Commission, the Complainants place their reliant on the Hon'ble Apex Court's Judgement in Indian Medical Association vs V.P. Shantha in (1995) 6 SCC 651 wherein it was held that:
"55. On the basis of the above discussion, we arrive at the following conclusions:
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State 26 Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
(5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(9) Service rendered at a government hospital/ health centre/ dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service -- is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be 'service' and the recipient a 'consumer' under the Act.
17. The learned counsel of Opposite Parties contended that there is no iota of reason as to why Section 47 of the Consumer Protection Act, 2019 should be invoked by the Complainants, inasmuch as, there is no goods or services exceeding Rs. 1 Crore paid as consideration by the Complainants to the Opposite Parties. The OPs further contended that the present complaint is outside the purview of the Consumer Protection Act as held by the Hon'ble Supreme Court in Nivedita Singh vs Dr. Asha Bharti (supra) that:
"....a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 2(1)(o) of the Act being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o) of the Act."
The Complainant No.1 in his cross-examination deposed that ""It is a fact that while my wife, Malsawmkimi (4) was admitted in the District Hospital, Serchhip we did not pay any medical charges like private hospital."
18. The counsel of the Complainant objecting to the arguments of the OPs stating that the initial objection of the OPs was the question in absence of members having 27 judicial background in regard law of limitation, there was ample opportunities to have objected the complaint at the initial stage for its maintainability in Consumer Commission, it is not in the best interest of justice to bring that up at the fag end of the case.
19. We have also place our reliance on Hon'ble Apex Court's Judgement in Indian Medical Association vs V.P. Shantha (supra) that "(10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act. (11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined inSection 2(1) (o) of the Act." In this context, the Mizoram Government is implementing Mizoram Health Care Scheme, A Health Insurance Scheme implemented by the Mizoram State Health Care Society at the relevant time. The services rendered by the District Hospital, Serchhip is hard to believe that all the services rendered to all their patients are free of charges. The Complainant produced a receipt for RAgT charges collected by the District Hospital as indicator for all charges are not free of charge. At the same time, when an insurance scheme is in operation at the hospital, all the services of the Doctors, Nurses and other employees may not be totally free of charge even when the salaries are paid the State Government. The Health & Family Welfare Department, Government of Mizoram displays in their website https://health.mizoram.gov.in/page/ machines-rate Machines rate - Machine & Investigation rates etc. at Civil Hospital, Aizawl are on display as under:
Pay Cabin @ Rs. 600/-
Sl.No. Particulars Out Door Indoor
1 X-Ray
Hand, Elbow, Shoulder, Humerous, Forearm Rs. 20.00 Free
Pelvis, Abdomen, Skull etc Rs. 30.00 Free
Chest Rs. 35.00 Free
Ba Swallow Rs. 50.00 Free
Ba Enema Rs.140.00 Free
Ba meal Rs.120.00 Free
Lumber, Thorasic Spine Rs. 60.00 Free
IVU Rs.140.00 Free
2 ECG Rs. 50.00 Rs. 50.00
28
3 Ultrasound Rs.150.00 Rs.100.00
4 Endoscopy Rs.150.00 Rs.100.00
5 Echo Rs.250.00 Rs.250.00
6 EEG Rs.300.00 Rs 250.00
7 PFT Rs.300.00 Rs.250.00
8 TMT Rs.500.00 Rs.500.00
9 Dialysis Rs.600.00 Rs.600.00
10 Holter ECG Rs.500.00 Rs.500.00
11 CT Scan
Head Rs.700.00
Chest, Abdomen Rs.1000.00
( BPL & AAY Family = Free )
Page Created On: 28th Sep 16 6:01 AM Updated On: 28th Sep 16, 6:01 AM
20. In careful consideration of the above, the District Hospital, Serchhip, Mizoram is also under the Government of Mizoram and the Health & Family Welfare Department, Govt. of Mizoram is the controlling authority. We believe that the District Hospital, Serchhip did not provide entirely free service for their patients which cannot be entirely different from the Civil Hospital, Aizawl which is under the control of the Health & Family Welfare Department, Mizoram. Hence, we allowed the Consumer Case No. 1 of 2024.
21. Before we analyse the case further, it is important to revisit the Hon'ble Supreme Court guidelines on Medical Negligence arising out of Jacob Mathew vs State of Punjab & Anr. (2005) 6 SCC 1. Some portion of the guidelines laid down that:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not 29 have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
22. The Hon'ble Apex Court also held in Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Ors CIVIL APPEAL NO.1385 OF 2001 that while deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: -
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring 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 requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a 30 procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
23. The Hon'ble Apex Court in the case of Arun Kumar Manglik Vs. Chirayu Health and Medical Care Private Limited and Anr. (2019) 7 SCC 401 held that:
"A three-Judge Bench of this Court in Laxman Balkirshna Joshi vs. Trimbak Bapu Godbole stipulated that the standard to be applied by a medical practioner must be of a "reasonable degree of care" -
"11. 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 the 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 task 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 requires (cf. Halsbury's Laws of England, 3rd Edn., Vol.26 p.14)"31
24. The learned counsel of the Opposite Parties is relying on the Hon'ble Apex Court Judgement in the case of Neeraj Sud & Anr. Vs. Jaswinder Singh (Minor) & Anr. Civil Appeal No. 272 of 2012 held that:
"14. It is well recognized that actionable negligence in context of medical profession involves three constituents (i) duty to exercise due care; (ii) breach of duty and (iii) consequential damage. However, a simple lack of care, an error of judgement or an accident is not sufficient proof of negligence on part of the medical professional so long as the doctor follows the acceptable practice of the medical profession in discharge of his duties. He cannot be held liable for negligence merely because a better alternative treatment or course of treatment was available or that more skilled doctors were there who could have administered better treatment.
"15. A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving treatment..."
"16. When reasonable care, expected of the medical professional is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence. In a celebrated and very often cited decision in Bolam v. Friern Hospital Management Committee (Queen's Bench Division), it was observed that a doctor is not negligent if he is acting in accordance with the acceptable norms of practice unless there is evidence of a medical body of skilled persons in the field opining that the accepted principles/procedure were not followed. The test so laid down popularly came to be known as Bolam's test and stands approved by the Supreme Court in Jacob Mathews v. State of Punjab. If we apply the same in the present case, we would find that Dr. Neeraj Sood was a competent and a skilled doctor possessing requisite qualification to perform PTOSIS surgery and to administer the requisite treatment and that he had followed the accepted mode of practice in performing the surgery and that there was no material to establish any overt act or omission to prove negligence on his part. As stated earlier, no evidence was adduced to prove that he had not exercised sufficient care or has failed to exercise due skill in performing the surgery."
"18. In other words, simply for the reason that the patient has not responded favourably to the surgery or treatment administered by a doctor or that the surgery has failed, the doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties."
25. The Hon'ble Apex Court in the case of CPL Ashish Kumar Chauhan (Retired) vs. Commanding Officer and Ors. (2023) 15 SCC 152 held that:
"(iii) The law on negligence
67. In India, medical negligence is said to have been established by an aggrieved plaintiff or complainant when it is shown that the doctor or medical 32 professional was in want of, or did not fulfil the standard of care required of her or him, as such professional, reasonably skilled with the science available at the relevant time. In other words, a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant speciality at the material time. This test is known as the Bolam test and has gained widespread acceptance and application in Indian jurisprudence. It finds resonance in several decisions. Recently, in Arun Kumar Mangalik v Chirayu Health and Medicare Ltd., this court outlined that though Bolam has been the bulwark principle in deciding medical (and professional negligence) cases, it must adapt and be in tune with the pronouncements relating to Article 21 of the Constitution and the right to health in general:
"41. Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts."
26. On careful perusal of documents on records and hearing the oral arguments, the contention of the Opposite Parties that the deceased Smt. Malsawmkimi was suffering from Anaemia with Chronic Hypotension, and not sure of her last menstrual period while she is supposed to take ultrasound to determine the expected date of delivery in early pregnancy. Dr. Laltharzeli Fanai in her statement also mentioned in Magisterial Enquiry that the patient did not know her last menstrual cycle. The deceased is a villager, who were living in Tlangpui Village which is about 100 km from Serchhip where she succumbed to the delivery of her baby. It was absurd to take ultrasound to determine the expected date of delivery which none of the Health Worker or Doctor advised them to do so. Moreover, the deceased patient could not be expected to know from the Antenatal Visit record if she had anaemia or any other disease unless informed by the medically qualified person including the Health Worker(s) in the Health Sub-Centre. Assuming the deceased Smt. Malsawmkimi had anaemia as per the objection of the OPs as in para 9(2) above, the blood sample of the deceased was taken only after the patient Smt. Malsawmkimi died. No sign of intending to take corrective measure to treat anaemia problem was found in the action of the treating doctors and nurses in the District Hospital, Serchhip. In the light of the Hon'ble Apex court stipulation in Laxman Balkirshna Joshi vs. Trimbak Bapu Godbole (supra), the treating doctor did not undertake reasonable due to care owed to the patient. It is the responsibility of the treating doctor to inform the patient that she had suffered from anaemia and needed to be corrected. There is no way that the patient herself could prescribed medicine to correct anaemia, it is absurd to expect 33 to do so in absence of prescription from qualified medical practitioner, let alone had known it or not. The course of treatment should have been prescribed by the treating Gynaecologist at least or referred to the concerned doctor if she had really suffered from Anaemia with Chronic Hypotension.
27. Moreover, the last menstrual period was recorded in the Antenatal Care registration card/visit records of the deceased that:
PREGNANCY RECORD Date of last menstrual period - 15.3.21 Expected Date of Delivery - 22.12.21 The statement of Dr. Laltharzeli Fanai in the Magisterial Enquiry that the patient did not know her last menstrual cycle whereas the Antenatal visit records showed that the last menstrual period was 15.03.2021 and the expected date of delivery was 22.12.2021. The treating doctor undermined the record in hand. The treating doctor despite knowing that the patient was suffering from Anaemia with Chronic Hypotension allowed to apply cervi prime gel on the patient for induction of labour to have NVD on 02.12.2021 instead of correcting the anaemia before delivery while the actual expected date of delivery was 22.12.2021 from her last menstrual period. From the submission of the OPs in their Objection to the Complaint submitted by Dr. Vanlalsawma present itself the evidence that the deceased Malsawmkimi was suffering from Anaemia with Chronic Hypotension based on the Antenatal visit report. It is established that the evidence from the submission of the OPs representative Dr. Vanlalsawma that the doctor failed to exercise the due skill possessed by the treating doctor in discharging of her medical duties. The treating doctor totally ignored the record in the Antenatal Care card and allowed to proceed for force delivery based on USG done alone on 01.12.2021 by applying cervi prime gel on the deceased before the actual expected date of delivery from her last menstrual cycle. The District Hospital, Serchhip is deficient and negligent in treating the deceased Malsawmkimi leading to maternal death.
28. Not attending PMSMA (Pradhan Mantri Surakshik Matriva Abhiyan) launched by MoHFW, Govt. of India Programme by the deceased has been the weakest defence against the complaint. In a reply to the information sought under RTI Act, 2005 by the counsel of the Complainants, Directorate of Health Services, Government of Mizoram informed on 13.02.2023 that, "PMSMA is not implemented at Tlangpui Sub- Centres. As the scheme is not implemented at their level, health workers are not given training for implementation. But they may give awareness to the community about the service availability in the nearest Government 34 Hospital. It may be noted that routine ANC check-up for pregnant women is done at Sub-Centre level (not PMSMA service)." The RTI information further admitted that, "....no Free Clinic was organised by the State Government to implement PMSMA at Tlangpui Sub-centre during the year 2021 due to Covid 19 pandemic." It is a fit case that the Respondents took a wrong turn showing their deficiency and negligence.
29. The Witness No.1 of the Opposite Parties Smt. Melody Zoremsangi deposed in her cross-examination that, "1. I worked as a substitute Staff Nurse in place of the regular nurses at the District Hospital, Serchhip from the year 2011 till December 2021. During the period, I worked under MSACS and I am not a regular employee of District Hospital, Serchhip and I did my duty as a nurse as and when requested by the regular nurses". In her Re-examination by the counsel for the OPs, she clarified that "1. With respect to Para No.1 of my Cross-Examination, I would like to clarify that my post under MSACS is also a staff Nurse, and although my duty as a Staff Nurse under MSACS and as a substitute staff Nurse at the District Hospital, Serchhip is not the same, I have necessary qualification for both the duties." The deposition of the Witness No.1 of the OPs confirmed that she is only a substitute nurse in place of the regular nurse. She is working in MSACS (Mizoram State AIDS Control Society); she is qualified or not; no cogent reason was put forth by the Opposite Parties being the State Government to treat and care patients in the District Hospital, Serchhip. To aggravate the matter, the substitute nurse was on duty without the supervision of Gynaecologist in the labour room. This also shows the failure of the District Hospital, Serchhip administratively thereby allowing the unauthorised personnel to treat and care patients breaching the Government regulations. The District Hospital, Serchhip was severely disarray to allow to employ substitute nurse in place of regular staff nurse for treating patients. In all likelihood, the District Hospital, Serchhip is in the hands of unauthorised personnel. The State Government of Mizoram is vicariously liable for whatever the Witness No.1 of the OPs Smt. Melody Zoremsangi did, good or bad, in treating patients in the District Hospital, Serchhip.
30. The contention of the Opposite Parties in para 15 (2) above, we are of the view that the decision whether to undertake Caesarean Section on the patient or not has to be taken by the attending doctor. The attending doctor ought to advise the patient by taking into consideration the condition of the patient. In this case, the patient is advance age (40 years) with 4 miscarriages may not be absolute indication for caesarean section, but for a prudent doctor with utmost care probably would have suggested without the request of the patient. Moreover, before resorting to forcing labour NVD, it would be prudent to have more investigation apart from doing USG.
35The treating doctor who herself is a female would have probably opted to have caesarean section had she been in the shoes of the deceased. It looks as if the treating doctor had in mind to have NVD only in absence of the Anaesthetist.
31. In the light of the above, this Commission is of the considered view that the District Hospital, Serchhip is negligent and deficient in the following counts: -
(1) The deceased patient Smt. Malsawmkimi approached the District Hospital, Serchhip with Anaemia with Chronic Hypotension during her pregnancy unknown to her which was evident from the Antenatal Visit records of the Sub-Centre as per para (ii) of the written statement of Respondent No.3 Dr. Vanlalsawma on behalf of the Opposite Parties. The treating doctor took no action to correct the anaemia suffered by the deceased.
(2) The Opposite Parties alleged that the deceased Smt. Malsawmkimi did not know her last menstrual period to established the expected date of delivery.
The Antenatal Visit Card clearly mentioned the date of her last menstrual period as 15.03.2021 and expected date of delivery as 22.12.2021. The treating doctor ignored the record in Antenatal Care card and attempting to force Normal Vaginal Delivery on 02.12.2021 and 03.12.2021 by applying Cervi Prime Gel leading to maternal complication and death.
(3) Despite the deceased patient had history of four spontaneous abortions/miscarriages, no careful examination and investigation was done on the deceased Smt. Malsawmkimi before or after admission as to whether she was a fit case of Caesarean or NVD. Whether or not C-Sec may be a choice, but health condition of the patient would determine. Absence of the Anaesthetist did not warrant to force NVD before the expected date of delivery.
(4) No complication developed at the time of admission as per the statement of the treating Gynaecologist. However, the deceased patient Smt. Malsawmkimi developed complication on delivery of a newborn baby and died on 03.12.2021 at 10:40 p.m. due to Post Partum Haemorrhage. By order of the DMS, Blood sample collected from deceased patient on 04.12.2021 possibly for a plausible defence.
(5) The District Hospital, Serchhip engaged a substitute nurse and the substitute nurse is attending the deceased patient without supervision of the treating doctor while the deceased patient was in labour and at the time of delivery. The District Hospital was lapse in engaging unauthorised personnel to attend to the deceased patient at the critical moment alone.
36(6) Upon perusing all the statements and facts of the case, it is evident that there is a clear contradiction in between the claims made by the attendant of Smt. Malsawmkimi (L) and the Doctor and nurses of the hospital. Contradiction can also be found in the submission of Dr. Vanlalsawma as in (1) and Dr. Laltharzeli Fanai about the health conditions of the deceased patient as in (4).
32. The Hon'ble Gauhati High Court (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) in Case No. WP(C)/73/2022 (supra) for the instant parties held that:
"20. From a careful perusal of the Magisterial Enquiry report and also the report and observation of the independent team of Doctors, some degree of negligence is attributable to the attending nurses and Doctors of the Hospital. Considering the past and medical history of Smt. Malsawmkimi, due care and proper monitoring ought to have been done, particularly in view of the non- availability of an Anaesthetist in station at the relevant time in case of emergency. More care ought to have been taken in view of the fact that there was another incident of death of a new born child on 31.10.2021, just over a month back."
"21. ....The claim for having monitored the labour progress while delivering a still born baby is only contradictory. If there indeed was constant monitoring of the labour progress, it is not understood as to how the baby could have been found to have no signs of life immediately on delivery. The team of Doctors in their report had no answer except to suggest that the rent/tear in the uterine wall, just before delivery may have been the cause. However, with the amount of care and monitoring said to have been done after inducing Cervi Prime Gel upon Smt. Malsawmkimi twice, it cannot be an occasion for delivering a still born baby. From the manner in which the events took place and considering the medical history of Smt. Malsawmkimi, not only the nurses on duty ought to have been more careful but the Doctor concerned also ought to have been closely monitored her condition. Therefore, there is clearly some element of negligence on the part of those who attended Smt. Malsawmkimi i.e., the attending nurses and the Doctor concerned."
33. Having regard to the events leading to the death of Smt. Malsawmkimi and her newborn baby we have concurred with the views of the Hon'ble Gauhati High Court in case No. WP(C)/73/2022 (supra) of the instant parties.
34. The Hon'ble Apex Court in (2005) 2 SCC 145 Arvind Kumar Pandey & Ors. Vs. Girish Pandey and Anr. held that:
37"6. Assuming that the deceased was not employed, it cannot be disputed that she was a homemaker. Her direct and indirect monthly income, in no circumstances, could be less than the wages admissible to a daily wager in the State of Uttarakhand under the Minimum Wages Act."
Therefore, compensation for the death of Smt. Malsawmkimi in the District Hospital, Serchhip should be paid by the Government of Mizoram at least the minimum wage. Smt. Malsawmkimi was 40 years of age when the unfortunate incidents happened. Assuming that she will be able to work till the age of 60 years of age when she reaches the retirement age as for the Government employees. The Opposite Parties should pay compensation amounting to ₹26,20,800 calculate at current minimum wage rate of ₹420 per day, 26 working days in a month for 20 years to the Complainants. In addition to the above, the loss of newborn baby could not be left unattended. Losing a mother by her two young children was hard enough, the husband also lost a wife and a newborn baby. We, therefore, allowed additional compensation amounting to ₹25,00,000 to be paid to the Complainants as punitive damage along with litigation cost amounting to ₹1,00,000 shall also be borne by the Respondents. Failure to make payment within 60 days from the date of this judgement and order, 9% per annum will be added from the total amount till payment.
35. The case is disposed of.
Sd/-
( LALHMINGMAWIA )
INTERIM PRESIDENT
Sd/- Sd/-
( C.LALRINKIMA ) ( P.C.VANLALREMRUATI )
MEMBER FEMALE MEMBER
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