National Consumer Disputes Redressal
T. Rama Rao vs Vijay Hospital And Anr. on 29 November, 2007
Equivalent citations: I(2008)CPJ170(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. The appellant/complainant husband lost his case for compensation of Rs. 10.00 lakh due to death of his wife on account of medicalnegligence against the opposite party/ respondents. Feeling aggrieved, he has filed this appeal.
2. The case of the complainant is that his deceased wife Doctor K. Vijayalakshmi was a Medical Officer at the Primary Health Centre, Vanapalli. On 13.7.1991, she lost control other left side limbs. She was admitted on 14.7.1991 in Madras Medical Mission. Vijay Hospital/ opposite party No. 1 allegedly appointed Madras Medical Mission a consultant to treat the deceased. On 15.7.1991, the patient was referred to Dr. Deepak, Neuro Physician. He conducted C.T. Scanning Test. After the test, Dr. K.M. Cherian of Madras Medical Mission declared that it was a medical case and not a surgical one and the patient would be all right within a week under the treatment of the Neuro Physician. But, neither Dr. K.M. Cherian nor anybody else of Vijay Hospital arranged for the services of Neuro Physician till 24.7.1991. When the condition of the complainant's wife became very serious, Dr. Deepak attended on her only on 24.7.1991 but could not do anything and the complainant's wife died on 26.7.1991 at 6 a.m. for want of proper medical treatment. When the complainant's father-in-law and the Consumer Action Group, Madras demanded copies of the case sheets pertaining to the deceased from the opposite parties, it was declined. The complainant claimed a sum of Rs. 10.00 lakh as loss of income to the complainant in the death of his wife.
3. The case of the opposite party No. 1, Vijay Hospital is that they had virtually no concern with the case for the simple reason that deceased was not a patient of Vijay Hospital but of Madras Medical Mission. There was no employer employees' relationship between Vijay Hospital, Madias Medical Mission or any other principal and agent relationship between the Vijay Hospital and the Madras Medical Mission. Vijay Hospital only provided nursing services including all medical facilities in the hospital and it did not treat the patients. It was also one of the conditions of agreement that admission into the hospital was in regard to the treatment provided to the patient and Consultants alone would be responsible. As such, Vijay Hospital cannot be held responsible for any negligence, if any, committed by any Doctor of Madras Medical Mission.
4. According to the second respondent/ opposite party, in 1977, the wife of the complainant underwent a closed heart operation for her blocked valves at Railway Hospital, Perambur for her father was working as Assistant Station Master in Railways and Dr. K.M. Cherian, RW3, conducted the operation at Railway Hospital. She again underwent Mistral Valve replacement a high risk surgery on 10.8.1987 at the 2nd respondent Institute. The operation was conducted by Dr. K.M. Cherian. The wife of the complainant (deceased) was advised medication to regulate anti-coagulation (absolute control of blood clotting parameters). She was also advised regular checkup first of it commencing from three months after the operation. She neither maintained medication nor came for her periodic checkup. She came for checkup on 12.4.1990 and she complained about her unhappy married life. On 14.7.1991, she was admitted on account of sudden stroke, which developed 24 hours before her admission. On inquiry by Dr. K.M. Cherian about anticoagulation status, she specifically told him that she had stopped taking medicine. Since it was not a surgery case, the services of Dr. Deepak Arjundas, Consultant Neuro Physician were requisitioned. On 15.7.1991, Dr. Deepak Arjundas took out the scan of the complainant's wife and suggested certain medication. The treatment was given as per his instructions only, and he had seen the patient on many occasions. She developed breathing difficulty and low urinary output on 25.7.1991. Dr. George Abraham, Consultant, Neuro Physician was consulted and necessary treatment was initiated. She was shifted to the intensive care unit at 11 a.m. in spite of all endeavours, her condition progressively deteriorated and on 25.7.1991, she became comatose. Unfortunately, she died on 26.7.1991, due to increasing brain lesion and she died of major embolic episode, due to improper rather absence of anti-coagulation. In such types of cases complications do set in, after some months/or years leading to disastrous consequences. Nobody could be blamed for this kind of complication in the case like the present one. There was no deficiency in service on the part of the opposite party/respondent No. 2.
5. The State Commission held that there was no deficiency in rendering medical services and, as such, the complaint was dismissed.
6. Having heard the learned Counsel and having gone through record, we feel the following points need our serious consideration:
(i) Whether both the respondents are deficient in rendering medical service for two reasons (a) lack of prompt, proper diagnosis, and prompt medical care of an appropriate Consultant/Neuro Physician, which allegedly led to deterioration in condition of the deceased and ultimate death, and (b) by not providing medical record excepting copies of entries in Nurses Register even on demanding in writing?
(ii) If so, what compensation the complainant/appellant is entitled to? And who is liable to pay the same?
7. As regards first point, there is no dispute about the fact that she was admitted on 14.7.1991. She lost control of her left side limbs and she was immediately admitted on 14.7.1991. It will be useful to produce what Dr. K.M. Cherian pleaded about her treatment:
On 15.7.1991, complainant's patient wife was referred to Dr. Deepak, Neuro Physician who conducted C.T. Scanning Test. After the test, Dr. K.M. Cherian (M.M.M. opposite party No. 2) declared that it was a medical case and not a surgical one and the patient would be all right within a week under the treatment of the Neuro Physician who would treat the patient in the Cardiovascular Unit. But neither Dr. K.M. Cherian nor any one on behalf of the opposite party No. 2 or 1 could arrange for the services of a Neuro Physician till 24.7.1991 when the condition of complainant's wife became very serious. Dr. Deepak attended only on 24.7.1991 but could not do anything and complainant's wife died on 26.7.1991 at 6.00 a.m. Thus a doctor patient died like a destitute without proper medical treatment from 16.7.1991 to 23.7.1991 in Asia's best hospital as proudly claimed to be by the opposite party No. 2. Complainant wife's death could have been averted had she been placed under constant treatment of a Neuro Physician. Therefore, virtually there was no treatment under general doctors who treated complainant's wife like a guinea pig for all their aimless experiments. In the circumstances the liability of the opposite parties arising out of their gross and reckless negligence in not arranging for proper treatment under a Neuro physician is inescapable, joint and several.
8. There is again no dispute about the fact that on 15.7.1991, after Dr. K.M. Cherian of the Madras Medical Mission declared that it was a medical case and not a surgical one, the services of Dr. Deepak Arjundas, Neuro Physician were requisitioned and he conducted scanning test of the patient on 15.7.1991. There was also no dispute about the fact that the patient had already been treated by Dr. K.M. Cherian, the Chief Surgeon of Madras Medical Mission in the years 1976-77 and again in the year 1987 before she was admitted on 14.7.1991. In these circumstances, even if the patient was referred to Dr. K.M. Cherian, of Madras Medical Mission by Vijay Hospital, the opposite party No. 1 could not be said to be negligent.
9. As regards the medical negligence on the part of the doctors and the staff of Madras Medical Mission, seeing the condition of the deceased patient, C.T. Scanning Test was got done by the Neuro Physician Dr. Deepak Arjundas, Dr. K.M. Cherian expressed his opinion that it was a medical case and not a surgical one. In absence of any evidence contrary to the same it should not be held that Dr. K.M. Cherian was negligent in rendering medical services to the patient.
However, several circumstances go against the opposite party/respondent No. 2, as would be evident hereinafter.
10. As regards the plea that no arrangement for the services of Neuro-Physician was made available afterl5.7.1987 to attend on the patient till 24.7.1991, the submission of the complainant was required to be seen in the light of preponderance of probability. There is no disputing the fact that on 15.7.1991 itself the patient was referred to the Neuro Physician and advice of Dr. Deepak Arjundas. C.T. Scanning test was conducted as is evident from para 3 of the complaint. Though according to the case of Madras Medical Mission, the patient got all the treatments prescribed by Deepak Arjundas, yet there is no specific denial that the services of Neuro Physician were not requisitioned between 15th July and 24th July, 1991. Unfortunately, Dr. Deepak Arjundas was examined as RW4 but only his examination-in-chief was recorded and when the question of his cross-examination arose he was not made available. Further evidence of Dr. Deepak Arjupdas could not be adduced.
11. However, there is Nursing Record Register which was produced to show that Dr. Deepak Arjundas had seen the patient on 18th, 20th and 23rd July, 1991. The entries were not proved by examining the Nurses, who had made those entries but Mrs. Jeevan Raj Nursing Coordinator Incharge of the Nursing Department in the staff of 2nd opposite party, Madras Medical Mission had been examined as RW 2 to prove the said entries. No reason has been given for non-production of the Staff Nurses, who made those entries. The said entries had not been referred to in written version. One of the complaints of the complainants/appellant was that the copies of the record of the patient were not given despite the request by the father-in-law of the deceased and by the Consumer Action Group. Even Dr. K.M. Cherian who had been examined as RW3 had not stated that Dr. Deepak Arjundas had attended on the patient on the said dates. The learned State Commission rightly refused to rely on these entries.
12. In such circumstances, drawing an adverse inference to the effect that service of Dr. Deepak had not been requisitioned: it is to be held that Dr. Deepak Arjundas after giving advice on 15.7.1991 did not attend on the patient till 24th July, 1991, and the condition of the patient was allowed to deteriorate. Possibility of removing progressing brain lesion, by surgical intervention by calling Neuro Surgeon was not explored, and to ensure putting her further on anti-coagulation regime.
13. It was the condition of the agreement that admission into the hospital that in regard to the treatment provided to the patient the concerned Consultant alone would be responsible for the treatment. Madras Medical Mission, an Autonomous body undisputedly was allotted space in the Vijay Hospital and Madras Medical Mission paid rent to the Vijay Hospital for the space given to them and the case sheet pertaining to the treatment was available only with the Madras Medical Mission and not with Vijay Hospital. The patient was referred to the Madras Medical Mission. Vijay Hospital did not claim any charges excepting the room charges, diet and other diagnostic tests.
14. Dr. K.M. Cherian of Madras Medical Mission stated that he was not the Consultant of Vijay Hospital. He was the Director of Madras Medical Mission. The deceased was not the patient of Vijay Hospital. She was the patient of Madras Medical Mission. Madras Medical Mission gave rent for the space given to them. The theatre, furniture and staff were of Madras Medical Mission. Out-patients did not pay any fee to Vijay Hospital and Madras Medical Mission paid the fees. The admission number is 87000057. Ex. B22 was the admission card given to Dr. Vijayalakshmi by the Madras Medical Mission. Dr. Vijayalakshmi was not the patient of Vijay Hospital. Thus, no medical negligence could be attributed to the Vijay Hospital in absence of any employer-employees' relationship between Vijay Hospital and Madras Medical Mission or the staff thereof.
15. The question, which needs our consideration, is "Whether in between 15.7.1991 and 24.7.1991, condition of the patient was such that it was necessary to immediately requisition the services of Dr. Deepak Arjundas?" According to Dr. K.M. Cherian, it was not necessary for Dr. Deepak Arjundas to see the patient everyday because there were 'in-house' doctors and they had a system whereby the in-house doctors were constantly in touch.
16. It was also submitted that the Nursing report would indicate that various other doctors such as Dr. Satish, Dr. Shetty, Dr. Haneefa, Dr. Rajan, all cardiologists working under Dr. K.M. Cherian, RW3, and they had also attended the wife of the complainant from 14.7.1991 to 24.7.1991. We do not see any reason to act upon the nurses report for the simple reason that neither the concerned nurses, nor these doctors were produced to indicate the condition of the patient. No reason has been given: "Why they could not be produced?" to appreciate the contention that the condition of the patient did not deteriorate and deteriorated all of a sudden did not deteriorate. It may be mentioned that the patient was admitted in the hospital. In absence of hospital record, these doctors might have proved bona fide of Madras Medical Mission and Dr. K.M. Cherian to ensure that due care and caution was taken while treating the patient.
17. The learned Counsel for the respondent No. 2 made a submission that the 'burden of proof was on the appellant that the complication experienced by the wife of the appellant was manageable only by a Neuro Physician and the services of Neuro Physician were not provided to the wife of the appellant due to the negligence of the respondent and as such negligence in not requisitioning services of Dr. Deepak Arjundas alone caused the death of his wife.
18. In this regard it may be appropriate to refer to the observations of the Hon'ble Supreme Court in the case of Gopal Krishnaji Ketkar v. Mahomed Haji Latif and Ors., (1968) 3 S.C.R. The relevant observations are stated hereinbelow:
Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withhold important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara, Lord Show observed as follows--
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough--they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.
This passage was cited with approval by this Courts in a recent decision, Biltu Ram and Ors. v. Jainandan Prasad and Ors. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjait Singh and Ors.--
But, it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.
But Shah, J., speaking for the Court, stated:
The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of document and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with Illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.
19. It may be added that in terms of Section 106 of the Evidence Act, if the respondent wanted to prove that due care and caution was taken in all good faith while giving treatment then they should have proved this fact in view of provisions under Section 106: Burden of proving fact especially within knowledge--when any fact is specially within the knowledge of any person, the burden of proving that intention is upon him.
Illustration
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
20. As has already been mentioned that withholding or the non-production of Dr. Deepak Arjundas the Neuro Physician would show that a Neuro Physician or a Neurologist did not attend to the patient. Non-production of the doctors who were cardiologists may be authorised to treat other ailment related to cardiac problems but neither Neurology nor Neuro Surgery could be said to be their specialty. Besides, their non-production would lead us to draw an adverse inference.
21. This matter needs to be seen further in the light of the fact that on one side it was claimed that the aforesaid cardiologists were in touch with Dr. Deepak Arjundas but there is no indication of any single endorsement/ document in handwriting of any doctor to establish that the treatment was being done in accordance with the advice of Dr. Deepak Arjundas, Neuro Physician.
22. It is evident from the impugned judgment that as per his own case, Dr. K.M. Cherian is a Cardiac Surgeon and quite competent to deal with the case of Dr. Vijayalakshmi. Dr. Vijayalakshmi suffered a stroke due to clot formed from the heart valves had gone to the brain which led to the damage half of the brain. He had also deposed that any MBBS Doctor was also qualified to treat any patient with any disease including a stroke. But this stand is incongruous in case of Specialities and treatment by Specialist. If the services of Dr. Deepak Arjundas have been availed, who was a specialist then this statement of Dr. Cherian is unwarranted. Then instead of going to Dr. Cherian for heart surgery, the patient could go to any MBBS for he would be qualified to treat heart-patient. This would render the services of specialist redundant. We are sure there is not what Dr. Cherian had in mind while making the above statement.
23. As regards non-delivery of record, the Indian Medical Council in exercise of the powers conferred under Section 20A read with Section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of India, with the previous approval of the Central Government, made the following regulations relating to the Professional Conduct, Etiquette and Ethics for registered medical practitioners. The term medical practitioners would include doctors with qualification of MBBS or MBBS with post-graduate degree/diploma or with equivalent qualification in any medical discipline:
1.1.1 A physician shall uphold the dignity and honour of his profession.
1.1.2 The prime object of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. Whosoever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the art of healing. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life.
1.2 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.
1.3.2 If any request is made for medical records either by the patients/authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours.
It is very much evident therefore from 1.3.1 that every physician was supposed to maintain the medical records pertaining to indoor patients for a period of 3 years in a prescribed proforma laid down by the Medical Council of India in Appendix 3. Appendix 3 reads as under--
Name of the Patient Age Sex Address Occupation Date of 1st visit Clinical note (summary) of the case Prov: Diagnosis Investigations advised with reports Diagnosis after investigation Advice Follow up Date Observations Signature in full.......
Name of the Treating Physician.
24. In terms of 1.3.2, a request was made for medical records either by the patient or authorised attendant or the legal authority involved. The same might be acknowledged and documents were to be delivered with 72 hours. If father of the patient demanded documents and they were not delivered, it would amount to deviation from expected professional conduct and ethics amounting to deficiency in service. The facts of this case are required to be seen in this backdrop. Relevant medical record has neither been supplied nor produced nor proved.
25. It would further be advisable to note the duties of a physician:
2.1 Obligations to the Sick--
2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicated to the patients. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency, a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However, for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician.
If we go by the aforesaid regulation, after Dr. Cherian had referred the matter to Dr. Deepak Arjundas, Neuro Surgeon, the case of Dr. Vijayalaxmi was admittedly was no more within the range of his experience and if that is true about Dr. Cherian that would be true of the said cardiologists working under him as well. In this light, it would be evident that not calling Dr. Deepak Arjundas between 15.7.1991 and 26.7.1991 is definite indication of the fact that the patient was neglected and her ailment was allowed to aggravate. It would amount to deficiency in rendering medical services.
It would be useful to reproduce further Regulations 2.3, 2.4 and 3.5.
2.3 Prognosis--The physician should neither exaggerate nor minimize the gravity of a patient's condition. He should ensure himself that the patient, his relatives or his responsible friends have such knowledge of the patient's condition as will serve the best interests of the patient and the family.
2.2 The patient must not be neglected--A physician is free to choose whom he will serve. He should, however, respond the any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not wilfully commit an act of negligence that may deprive his patient or patients from necessary medical care.
3.5 Treatment after consultation--No decision should restrain the attending physician from making such subsequent variations in the treatment if any unexpected change occurs, but at the next consultation, reasons for the variations should be discussed/explained. The same privilege, with its obligations, belongs to the consultant when sent for in an emergency during the absence of attending physician. The attending physician may prescribe medicine at any item for the patient, whereas the consultant may prescribe only in case of emergency or as an expert when called for.
26. In terms of 3.5, one of the duties of the attending Physician in Consultation, after consultation that he could make such subsequent variations in the treatment, if any, unexpected change occurs, but at the next consultation, reasons for the variations should be explained. But in this case, everything has been wrapped up in secrecy. We do not have the case summary of the attending physician while the case was referred to the specialist like Dr. Deepak Arjundas. We do not have the opinion of the specialist in writing to the attending physician, which is required to be prepared in terms of 3.6, one of the duties of Physician, in Consultation.
27. These circumstances lead us to draw an adverse inference to the effect that, had the medical record and the witnesses been produced, they would have gone against the case of the respondent. The case is of due care and caution of good faith in treating patient. In such circumstances, we hold that there was negligence in treating the patient her ailment was allowed to aggravate, possibility of surgical intervention to remove the blood clot from the brain was not explored and this, which ultimately led to death.
28. One of the submissions made by the respondent was that father of the deceased Mr. Parthasarthy wanted record of the deceased from the Nurses to show it to Dr. K.M. Cherian who was known to him and taken the record.
This plea is to be rejected for it was neither the case of Dr. Cherian earlier in reply to the letter of the Consumer Action Group, it was mentioned, nor the matter was reported to the police, nor any notice was issued to Mr. Parthasarthy. Thus, version about taking away the medical record or of theft of medical records is an afterthought to cover up non-production of the record.
29. This story seen propounded by Dr. Cherian and Madras Medical Mission cannot be accepted in the light of the duty of a physician to maintain the record and information. As such, Madras Medical Mission has to be held guilty of withholding the material evidence, which was supported to be in their possession. Accordingly, an adverse inference is required to be drawn against Madras Medical Mission and its Director, Dr. K.M. Cherian.
30. No doubt, it is not possible to say that death took place only on account of failure to call Dr. Deepak Arjundas for Consultation for there is virtually no reason to say that the sudden 'stroke' was not caused by blood clot developed 24 hours before her admission, in light of the history of the case. But preponderance of the circumstances narrated earlier would certainly justify holding Madras Medical Mission and Dr. Cherian guilty of negligence for not ensuring regular consultation with Dr. Deepak Arjundas for as long as 9 days. Had her case been reviewed, there could have been a possibility of brain surgery to remove the blood clot or to increase the doses of the anti-coagulation medicine, dissolve the blood clot along with other measures to check aggravation of the ailment.
31. Supposing for the sake of argument, even if it is presumed that the condition of the patient was such that there was no chance of her recovery, even then, Dr. Cherian or the Madras Medical Mission had not discharged the obligation under Regulation 2.3.6 of the Regulation for it is not their case that the father or the husband of the deceased were informed that there was a little chance of her recovery. It is also not the case that it would not be in the best interest of the patient and the family members of the deceased. As such, on this ground as well, we find them deficient in rendering service.
32. Consequently, Madras Medical Mission cannot absolve itself of the liability to pay compensation for deficiency in rendering service in medical treatment to the deceased, wife of the complainant.
33. Now, coming to the compensation part, the deceased was earning a sum of Rs. 3600 p.m. If we keep in mind that she would have taken care and also she was properly attended to by the attending physician(s) of Madras Medical Mission, then her life might have prolonged to about 10 years or so for she was 38 years of age. Dr. Vijayalakshmi, the deceased was drawing Rs. 39,845 per year including all allowances and it was increased to about Rs. 60,000 per year w.e.f. 1992. The complainant claimed the amount of Rs. 12.00 lakh on the basis of this amount on the basis of the pay of Rs. 5,000 for a period of 20 years and Rs. 19,922 for six months. We feel that she would have spent Rs. 2,500 on her own in maintaining herself. Supposing, seeing the age of the complainant and assuming he would have married, the question would arise whether he could have married similarly qualified wife by second marriage like Dr. Vijayalakshmi. The second marriage could not compensate the complainant husband if he would have married after 4-5 years. Taking into consideration condition of the deceased at the time of admission, and negligence in due care, on the aforesaid circumstances, we feel it would be appropriate that a sum of Rs. 3,00,000 in all with cost of Rs. 15,000 would be appropriate to be paid by the Madras Medical Mission, respondent No. 2.
34. Insofar as Vijay Hospital is concerned, we feel that Vijay Hospital should not be held liable in view of the statement made by Dr. K.M. Cherian.
Appeal is allowed in above terms against respondent No. 2 and dismissed against respondent No. 1.