National Consumer Disputes Redressal
Parmod Grover And Ors. vs Manvinder Kaur (Dr.) And Ors. on 27 October, 2006
Equivalent citations: 2(2007)CPJ63(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. The complainant aggrieved by dismissal of his complaint for compensation for death of his wife due to deficiency in rendering medical service by the respondents has filed this appeal. One of the reasons for dismissal of the complaint is mentioned as under:
That the pleadings of the parties which have been reproduced in detail above, contain many disputed and complicated facts requiring recording of lot of evidence and going through numerous documents. The complainant has filed numerous documents, which are at pages 21 to 192 of the paper book. The Corporation has also filed documents, which are at pages 217 to 279. The complainant has also relied upon certain reports sent to the Corporation by Dr. G.C. Sood and Mr. T.R. Mannan and which are said to be in the possession of the Corporation.
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Thus, a scrutiny of lot of evidence and documents has to be undertaken in this complaint. For this purpose the proper Froum as noticed above is a Civil Court.
2. In addition to above, there are certain observations holding that the respondent doctors could not be held guilty of professional negligence, and that the complainant/appellant have inflated the value of the claim so as to pick and choose Consumer Forum.
3. But, certain facts need our considerations. On 24th April, 1994, at 8 a.m., the complainant got his wife Mrs. Parveen Grover admitted in Gulati Nursing Home for delivery of their third child. Normal delivery was expected. Since there was no progress of the labour and foetus was coming out indicating foetus distress, the lady doctor, Dr. Manvinder Kaur advised immediate surgical operation. Since the husband of the patient Parmod Grover was not available, the consent of the brother of Smt. Parveen Grover was taken at about 11 a.m. Dr. Samran Singh Gulati gave spinal anaesthesia at about 11 a.m. Complication arose. Both the doctors also associated with them certain local experts in Surgery and Medicine and with this treatment blood pressure, respiration and pulse rate, etc. got improved. However, at about 12.30 p.m. it was decided to take the patient to Bhatinda where facility for operation under general anaesthesia, etc. was available. Ambulance was arranged. When the attendants were still in the process of shifting the patient from the room to the ambulance at about 3.00 p.m., the patient collapsed.
4. One month after the death of Mrs. Parveen Grover, FIR No. 152 on 31.5.1994 was lodged against both the doctors in Police Station, Mandi Dabwali, under Sections 304/316/384/ 465/468 and 120B of the Indian Penal Code. The case was pending before the Sessions Judge, Sirsa. On the request of the complainant a panel of senior medical experts consisting of the following Doctors was constituted by the Director General, Health Services, Haryana on 11th June, 1994:
1. Dr. D.P. Mangla, MD (General Medicine). HCMS - 1, Director Health Services (Malaria), Haryana, Chandigarh.
2. Dr. Harbhajan Singh Randhawa, MS (General Surgery), Surgeon, General Hospital, Karnal.
3. Dr. (Smt.) Subhita Ajmani, MBBS, DGO; Gynaecologist, General Hospital, Karnal.
4. Dr. Sukhbir Singh, MD (Anaesthesia), Anaesthetist and SMO; General Hospital, Karnal.
5. They gave a report virtually exonerating the doctors. However, from the record it is also apparent that the said panel noticed that simple urine examination BT, CT and xylocain sensitivity test were not undertaken in the present case.
6. The complaint was made to the Medical Council of India. We are not aware as to what has transpired therein.
7. The report of one Dr. Neeresh Chandra was virtually discarded by the State Commission. Final opinion of Dr. Neeresh Chandra observed as under:
It appears to be a misadventure in gynaecological field resulting in two deaths, as a result of spinal anaesthesia and its complications with irreversible shock.
The patient was not fit physically and clinically for the spinal anaesthesia.
Dr. S.S. Gulati and Dr. Manvinder Kaur appear to have precipitated the crisis for the reasons best known to them. It would be difficult to defend themselves the election of operation was not for their best interest (monetary gain).
For the reasons brought out, the decisions to operate, with unqualified status and lack of facilities as against the pelvic delivery was an error. They could have, at the most, saved atleast one life (as per their own judgment).
8. It appears after going through the report while we cannot approve argumentative part and comments on the report of other doctors, there are certain questions, which arise from his report for consideration.
9. It may be mentioned that in terms of CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd. III (2003) CPJ 9 (SC) : 2003 CTJ 849 (Supreme Court) (CP), simply because the matter is said to be complicated, Consumer Fora should not refuse to entertain the complaint of a consumer for the Supreme Court laid down guidelines in Paras 6,7 and 9 as under:
6. ...Merely because recording of evidence is required or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved....
7. ...The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary inquiry i.e., by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the Fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court. Each District Forum is headed by a person who is or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a Forum under the Act....
9. ...It should be kept in mind that the Legislature has provided an alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtained on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards....
10. It may be mentioned that in absence of affidavits and cross-examination through interrogatories, etc., it was not very appropriate for the State Commission to reject the claim of the complainant/appellant out of hand on one side in the light report of the panel that simple urine examination B.T., C.T. and Xylocaine sensitivity test were not undertaken have a side report of Dr. Heeresh Chandra and another to refer the entire matter to the Civil Court.
11. While neither it would be possible to grant the relief in respect of Claim No. 2 to permanently restrain and debar the medical professionals and to cancel their medical certificates nor it is possible for any Consumer Fora for the closure of Gulati Nursing Home for those directions cannot be given in any of the reliefs under Section 14 of the Consumer Protection Act. But there could not be any inhibition in saying that other reliefs could be granted by the State Commission. In such matter, complaint is to be splitted for the purpose of entertaining the claim in respect of which relief can be granted by the Consumer Fora, and the reliefs, which cannot be considered by the Consumer Fora.
12. For the aforesaid reasons, we feel that insofar as the reliefs relating to compensation for deficiency in service, interest and costs are concerned, the matter is required to be remitted to the State Commission to give an opportunity to both the parties to file their affidavit evidence along with opinion(s) of experts and in case the parties so desire, may serve interrogatories on the witnesses of each other and thereafter to decide the case on the basis of evidence in respect of the above said reliefs only.
13. In respect of the other reliefs, the complainant/appellant shall be at liberty to approach Civil Court or any other appropriate Forum. In case he files a suit he will be entitled to seek exclusion of the time spent before the Consumer Fora under Section 14 of the Limitation Act in view of the judgment of the Hon'ble Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute .
14. Accordingly, for the aforesaid reasons, the impugned order is set aside and the matter is remitted to the learned State Commission for deciding the matter on merits in accordance with law. Both the parties are directed to appear before the State Commission on 5.12.2006.
15. A copy of this order may be sent to the parties.