State Consumer Disputes Redressal Commission
Geeta Rani Kakkar vs Chandigarh Administration on 9 August, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH (I) First Appeal No. 195 of 2011 Date of Institution 29.7.2011 Date of Decision 9.8.2012 [1] Geeta Rani Kakkar w/o Sh. Gurwnditta Kakkar r/o Plot No.21, Sector 2, Industrial Area, Kurukshetra. [2] Tulika Kakkar aged 2 years (minor) d/o Late Shri Hitender Kakkar, through her grand mother Smt. Geeta Rani Kakkar w/o Sh.Gurwnditta Kakkar r/o Plot No.21, Sector 2, Industrial Area, Kurukshetra. [3] Gurwnditta Kakkar son of Sh. ThakurDass Kakkar, r/o Plot No.21, Sector 2, Industrial Area, Kurukshetra. .Appellants/complainants V E R S U S 1. Chandigarh Administration through Health Secretary, U.T. Secretariat, Sector 9, Chandigarh. 2. Government Medical College & Hospital, Sector 32, Chandigarh, through its Medical Superintendent. ...Respondents/OPS 3. Himani Kakkar wd/o Sh. Hitender Kakkar, resident of Village Jungal, District Hamirpur, Himachal Pradesh (Present Address:- Ms. Himani W/o Sh. M.S. Rajput, H. No. 1215, Sector 33-C, Chandigarh.) ...Proforma Respondent/OP BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT MRS. NEENA SANDHU, MEMBER
Present:-Sh. Sandeep K. Sharma, Adv. for the appellants.
Sh.
Vikram Anand, Adv. for respondents No.1 & 2.
Sh.Rajneesh Chadwal, Adv. for respondent No.3 (proforma respondent) (II) First Appeal No. 257 of 2011 Date of Institution 28.9.2011 Date of Decision 9.8.2012 Government Medical College & Hospital, Sector 32, Chandigarh, through its Director Principal.
---Appellant/OP No.2 Versus 1 Ms. Geeta Rani Kakkar w/o Sh. Gurwnditta Kakkar
2. Tulika Kakkar (minor) d/o Late Shri Hitender Kakkar, through her grand mother Smt. Geeta Rani Kakkar
3. Gurwnditta Kakkar son of Sh. Thakur Dass Kakkar, All are residents of Plot No.21, Sector 2, Industrial Area, Kurukshetra(Haryana).
.Respondents/complainants Present: Sh. Vikram Anand, Adv. for the appellant.
Sh. Sandeep K. Sharma, Adv.
for the respondents.
MRS. NEENA SANDHU, MEMBER This order shall dispose of the aforesaid two First Appeals, bearing No.195 of 2011 filed by the complainants and bearing No.257 of 2011 filed by Opposite Party No.2 against the order dated 17.6.2011, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainants and directed the Opposite Parties (now respondent Nos 1&2 in First Appeal No.195 of 2011) as under.
20] As a result of the above discussion, this complaint is accepted and OPs No.1 and 2 are directed to pay a sum of Rs.8 lacs to the complainants as compensation for the death of Sh.Hitender Kakkar who died due to the negligence of the OPs No.1 and 2. OPs No.1 and 2 are also directed to pay Rs.10,000/- to the complainants as costs of litigation. This order be complied with within one month by the OPs No.1 and 2 from the date of receipt of the certified copy failing which they are liable to pay the interest @ 9% p.a. on the entire amount to the complainants from the date of filing of the complaint till its realization.
1. In brief, the facts of the case are that Complainant No.1 and 3 had got their son namely Hitender Kakkar admitted, in the Hospital of Opposite Party No.2 vide C.R. No. 081009131, with history of flame burns due to fire cracker, on being referred by Pawan Goel Hospital at Kurukshetra.
It was stated that initially, he was admitted in the Emergency Ward and, later on, was shifted to Burns Ward. He was allotted Bed No.1. It was further stated that his condition was gradually improving and his burn wounds had started healing. It was further sated that on 7.11.2008 at 2 A.M., Bed No.1 was allotted to another critically burnt patient namely Parveen Kumar with 80% burns and Hitender Kakkar was shifted to Bed No.8 in Room No.5, which was very uncomfortable. The room was very untidy and unhygienic, to which the attendants of Hitender Kakkar objected to, but to no avail. It was further stated that in the early morning of 7.11.2008, the said Parveen Kumar died and Hitender Kakkar was again re-shifted to Bed No.1 at about 7:30 a.m, on the same day. It was further stated that before re-allotting Bed No.1 to Hittender Kakkar, it was neither sterilized nor disinfected, due to which his condition all of a sudden started deteriorating. The doctors in their last ditch effort tried to handle the same, but failed to do so and ultimately, Hitender Kakkar died at 10.00 P.M. on 7.11.2008. It was further stated that the patient namely Hitender Kakkar contacted infection, due to the negligence of the hospital staff and callous attitude of the doctors. Further, the hospital staff, in order to cover up their folly, manipulated the records and in the post mortem report recorded that the cause of death was Septicemia consequent upon burn injury. It was further stated that Opposite Party No.2, its concerned doctors and the staff were guilty of medical negligence. It was further stated that the Opposite Parties were thus deficient, in rendering service, as also, indulged into unfair trade practice.
When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
2. In their joint written reply, Opposite Parties No.1 and 2 stated that patient-Hitender Kakkar had sustained approx. 50% burns (IInd and IIIrd degrees) involving neck, chest, both upper limbs and face. It was further stated that the Patient was immediately attended and after initial resuscitation and management, he was shifted from the Emergency Ward to Bed No.1 in the Burn Unit. It was further stated that the patient was treated with utmost care and attention, and was also given due standard treatment, as per the established protocol, while attending to such cases. It was further stated that on 7.11.2008 at around 2 A.M., one patient namely Parveen Kumar, was received, in the Burn Unit, with 80% burns and was critically ill. In view of the aforesaid emergency, Sh.Hitender Kakkar was shifted to Bed No.8, in the same unit. However, the same was opposed by the attendants of the patient. It was further stated that the said Parveen Kumar died on same day at around 7 A.M. and Hitender Kakkar was again re-shifted to Bed No.1 on 7.11.2008. It was further stated that all the beds were regularly carbolized and all possible measures were taken to ensure utmost hygienic conditions. It was further stated that, as per the record till 6.11.2008, the condition of the patient was stable. However, on 7.11.2008 at around 4 PM, when Dr. Uma conducted his check up and reported respiratory distress and complaint of pain in right. Chest. ECG was instructed, which was done. It was further stated that the condition of the patient deteriorated on 7.11.2008, and due to septicemia, which was on account of the presence of multiple pus pockets, in both lungs and both kidneys, consequent cardiac arrest occurred, which was the cause of his demise. It was further stated that the patient died on 7.11.2008 at 10.30 PM. The Post Mortem was conducted on the dead body of Hittender Kakkar in the Department of Forensic Science and the body was handed over to the Police Officials. It was denied that Opposite Party No.2, its doctors and other staff were guilty of medical negligence. It was further stated that, the answering Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice.
3. Dasti summons were obtained for the service of Opposite Party No.3 (proforma Opposite Party) but the same were received back with the report of refusal. Refusal being a good service, Opposite Party No.3 was deemed to be duly served, but neither she nor any authorized representative, on her behalf appeared. Hence she was proceeded against ex parte on 1.9.2010.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, in the manner referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeals have been filed, one by the complainants, for enhancement of compensation and the other by Opposite Party No.2, for setting aside the impugned order.
7. We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully.
8. The learned Counsel for the appellants/complainants (respondents in cross appeal No. 257 of 2011) submitted that the District Forum was right in coming to the conclusion that there was deficiency in service on the part of respondent No.1&2. He further submitted that bed No.1 was allocated to Mr. Hitender Kakkar-deceased in burns ward but on 7.11.2008 at around 2.00 a.m., on the admission of some other patient namely Parveen Kumar, bed No.1 was given to him and Mr. Hitender Kakkar was shifted to bed No.8 in room No.5.He further submitted that bed No.8 was very uncomfortable, the room had no fan and it was very untidy and unhygienic. He further submitted that the attendants of the deceased requested the Hospital Authorities for change of the bed but nothing was done. It was further submitted that in the early morning of 7th November, 2008 the critically burnt patient Parveen Kumar died and bed No.1 was re-allocated to Hitender Kakkar at 7.30 a.m on the morning of 7th November, 2008. He further submitted that before re-allocating bed No.1, the same was neither sterilized nor disinfected and due to this reason the condition of Hitender Kakkar all of a sudden started deteriorating and he died at 10.00 pm. on the same very day i.e. 7.11.2008. He further submitted that even the perusal of the medical record, reveals that the patient contacted infection due to the negligence of the hospital staff. Not only this, the Hospital staff in order to cover up their folly even manipulated the hospital records. He further submitted that even the attitude of the doctors was callous and the same was substantiated from the fact that as per the report sheet dated 5.11.2008 a blood sample of the patient was taken for blood culture but it was never sent to the laboratory for testing, as the Department of Microbiology had categorically stated that no blood sample for blood culture as on 5.11.2008, was received by it. He further submitted that Mr. Hitender Kakkar survived by his two years old daughter (now 3) and aged parents, and widow Ms. Himmani Kakkar (proforma respondent No.3), who is now remarried and happily residing with her husband. He further submitted that Mr. Hitender Kakkar was proprietor of a firm trading in paper, stationery books and manufacturing exercise books, and he was an income tax assessee and was filing income tax returns regularly as is evident from Annexure C-11(colly). He further submitted that, thus, the District Forum while awarding compensation totally ignored the returns furnished by Hittender Kakkar. He further submitted that not only this the District Forum also ignored the fact that the deceased who was the sole bread earner of the family died at a very young age of 25 yrs and left behind a minor daughter, and old parents. He further submitted that the compensation awarded by the District Forum, being meagre, deserves to be enhanced.
9. On the other hand the Counsel for respondents No.1&2 (respondent No.2 appellant in F.A. No.257 of 2011) submitted that it was wrong that the patient Hitender Kakkar was asked by OP No.2, to vacate bed No.1 in order to adjust some emergency case. He further submitted that in fact, as submitted in the reply, filed in the District Forum, bed No.1 was mostly given to that patient, who was severely ill, in order to pay urgent medical attention, as the same is in close proximity to the Nursing Station. He further submitted that on admission of Mr. Praveen Kumar, the patient with 80% burns, whose condition was worse than Mr. Hitender Kakkar (having 50% burns) he was given bed No.1, for the reasons mentioned above, and, as such, Mr. Hittender Kakkar was shifted to bed No.8. Hence there was no negligence on the part of the respondent No2 (appellant in F.A. No.257 of 2011). It was further submitted that the District Forum erred in holding that deceased Hitender Kakkar, was re-allocated the un-sterilized /un-fumigated bed No.1 after the death of Praveen Kumar, by placing reliance on the affidavit of Sh. Mohammad Ali Jaan and Sh. Ankur Gauba, who are not experts in the field of medical science. He further submitted that bed no 1 was disinfected after following the standard protocol i.e. Carbolizing (treatment of bed with carbolic acid) in order to avoid any chance of infection. It was further submitted that the shifting of patient to a different bed, and its re-allocation, could not be co-related to the development of septicemia, which was the ultimate cause of his death, as per the postmortem report, but the same had occurred due to the presence of multiple pus pockets in both lungs, and both kidneys. He further submitted that the present case is not based on any expert opinion, which was essential in the case of medical negligence. He further submitted that the order passed by the District Forum, is not sustainable.
10. The Counsel for respondent No.3, submitted that respondent No.3 being widow of deceased Hitender Kakkar is entitled to get her share, in the compensation awarded by the District Forum.
11. In appeal No. 257 of 11 filed by the Govt. Medical College and Hospital, sector 32 (GMCH) an application, for placing, on record, Annexures A-1 to A-3, by way of additional evidence was moved. Annexure A-1 is a copy of the register showing the entry of carbonization, A-2 is the affidavit of Ms. Paramjit Kaur, Nurse, and A-3 is a copy of register showing the temperature. The Counsel for the appellant-GMCH (respondent No.2 in appeal No. 195 of 2011 ) submitted that these documents are essential to prove that needful was done by the appellant-hospital and there was no medical negligence on its part. It was further submitted that these documents, are essential for the just decision of the appeal.
12. Reply to the application was filed by the respondents/complainants (appellants in this case i.e. F.A. 195). The Counsel for the respondents/complainants (appellants in F.A. 195) submitted that the application was baseless and an afterthought to cover up the lacunae left in the case, by Opposite Party No.2. It was further submitted that had these documents been, in existence, then the appellant-hospital would have produced the same before the District Forum. He further submitted that these documents were manipulated and fabricated. It was further submitted that moreover, no ground, was made out in the application as to why the documents were not produced before the District Forum. He further submitted that the application was liable to be dismissed.
13. During the course of arguments, while adjudicating the application, for additional evidence, a specific query was put to the Counsel for the applicant/hospital, as to why these documents, if in existence, at the time of pendency of complaint, were not produced before the District Forum, but he could not give any satisfactory answer. However, we are of the considered opinion, that these documents are essential for the just decision of the appeal. Thus we allow the application, for placing on record the aforesaid documents, by way of additional evidence.
14. In order to ascertain whether on 7.11.2008 bed No.1 was sterilized or not, on 18.4.2012 this Commission ordered respondent No.2-GMCH, (appellant in FA. No. 257 of 2011) to produce the original register, as it was allegedly shown in Annexure A-1 that the bed in question was disinfected to which the deceased-Hitender Kakkar was shifted. The orginal register was produced on 11.5.2012 and was retained by this Commission. A perusal of the bottom of page No.185, of the said Register, which was duly signed, reveals that for night shift on 6.11.2008 scrubbing and Carbolization of room No.3201 &3208 was done, whereas the patient namely Mr. Parveen Kumar died on 7.11.2008 at around 7.a.m and Hitender Kakkar was again re-shifted to bed No.1 on the same date at about 7.30 a.m. In the absence any specific time, mentioned in the said register, how it could be believed that the bed, in question, was disinfected at the relevant time i.e. in between 7.00 a.m to 7.30 a.m. on 7.11.2008. Faced with this situation, a query, in this regard, was put to the learned Counsel for respondents 1&2. To this query, he answered that, as per the usual practice of the hospital the night shift, which starts from the prior day at 8.00 p.m. ends at 8.00 a.m. of the next day and that was why the date mentioned, in the register was of 6.11.2008 Instead of 7.11.2008. Even, in the affidavit of Ms. Paramjit Kaur, Nurse she stated that she was on duty from 8.00 pm. on 6.11.2008 to 8.00 a.m. on 7.11.2008. In the present case, the patient Praveen Kumar died at about 7.00 a.m on 7.11.2008 i.e. during the night shift. But there is no proof whether after 7.00 a.m. on 7.11.2008 the bed, in question, was actually carbonized. Even the said nurse did not say anything, in her affidavit, placed on record, by way of additional evidence as Annexure A-2, as to at what time, she actually carbonized the bed, in question. Had there been any mention of the time, in the register as to when bed No.1 was carbonized, then the situation would have been different. Hence, in the absence of any specific time, mentioned in the register, and affidavit of the Nurse, it cannot be said that the bed, in question, was carbonized at the relevant time. Therefore, the contention of the Counsel for the Opposite Party-hospital, that they carbonized the bed, in question, at the relevant time, is not sustainable. The assertion of the Opposite Party-hospital is further falsified, from the affidavits of Mohd. Ali Jaan Annexure C-7 and Sh. Ankur Gauba Annexure C-8 submitted, by way of evidence, wherein they testified that the bed, in question, was not disinfected and even the bed sheets thereof were not changed.
Even, in the Inquiry Report (Annexure-B), the Committee of doctors merely opined that shifting of the patient had no relation to the demise of the patient, but there was no mention that as to whether bed No.1, was duly carbonized or not before re-allotting the same to Hitender Kakkar(deceased), which is the main dispute in the present case. Hence, the said report does carry any weight and the same is rejected. Thus, in the absence of any cogent and convincing evidence, having been produced by Opposite Parties No.1&2, it is established that bed No.1 was not disinfected, by the respondent-hospital prior to re-shifting of Hitender Kakkar to the same, which amounted to aggravation of infection, and led to his death on the same day i.e. 7.11.2008 at about 10.00 pm. Thus, there was palpable medical negligence, on the part of respondent-2, and also respondent No.1 being Administrator of respondent No.2, leading to the death of Hittender Kakkar. They were, thus, deficient in rendering service. The District Forum rightly directed them to compensate the complainants for the negligent act. The contention of the Counsel for respondents No.1&2, that the District Forum was wrong in applying the principle of res-ipsa loquitur is not sustainable, as, in the present case, the circumstances speak for themselves. Even the sample of blood of Hittender Kakkar for blood culture, as prescribed by the doctors was not sent to Microbiology Department, for ascertaining, as to which specific antibiotics were required for controlling the infection of Hitender Kakkar. The District Forum was, thus, right in holding that medical negligence of the respondents was proved. The District Forum was also right in coming to the conclusion that Opposite Parties No.1&2 were liable to pay compensation.
15. During the pendency of appeal, the widow of the deceased namely Himanni Kakkar who is a Proforma respondent and was proforma Opposite Party, before the District Forum, appeared with her Counsel in F.A. No.195 and prayed that being a widow of the deceased she is also entitled to the compensation awarded by the District Forum. The learned Counsel for the appellants/complainants vehemently opposed the same and submitted that she was arrayed as proforma OP No.3, in the District Forum and the summons sent to her but the same was received back with refusal and she was deemed to be served and, as such, she did not contest the case. He further submitted that hence she is not entitled to any compensation. We find force in the contention of the Counsel for the appellants/complainants, because she even did not prefer an appeal against the order of the District Forum. Even, she did not contest the case before the District Forum, as she was proceeded against ex parte because she refused to accept the service of summons. Ms. Himmani Kakkar has now remarried and she is living with her husband. She is not dependent upon the Kakkar family. She also did not file an independent consumer complaint, claiming compensation. In such circumstances, in these proceedings, she is not held entitled to any compensation. She shall, however, be at liberty to resort, to any legal remedy, which may be available to her, for such relief, if admissible.
16. We also do not agree with the contention of the appellants/complainants (respondents in F.A. No.257 of 2011) that the District Forum did not award them sufficient compensation. The District Forum took into consideration the age of deceased and the number of dependents upon him, and then came to the conclusion as to how much compensation could be said to be reasonable, adequate and fair. The District Forum was wrong in holding that no proof regarding the income of Hittender Kakkar (deceased) was produced. This observation of the District Forum is wrong. Annexure C-11 (colly) are the Income Tax Returns of Mr. Hitender Kakkar for the years 2004-2005 and 2005-2006. Thus proof regarding the income of Hitender Kakkar was produced. Even after taking into consideration Annexure C-11(colly) and other factors, we are of the firm view that compensation of Rs.8.00 lacs awarded by the District Forum, to the complainants, by no stretch of imagination, can be said to be inadequate. No ground, therefore, for enhancement of compensation is made out.
17. In view of the above discussion, we do not find any merit, in both the appeals, referred to above, and the same are dismissed with no order as to costs. The order of the District Forum is upheld.
18. Since the complainant/appellant No.2-Tulika Kakkar daughter of Hittender Kakkar, is minor, out of the total amount of compensation of Rs.8.00 lacs, as and when paid/recovered, alongwith interest, and costs, Rs. 6.00 lacs, shall be deposited, in the fixed deposit in her name, through her guardian, for a period of 3 years, to be renewed, from time to time, and she shall be entitled to withdraw the same only, if need be, on attaining majority.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The original Assignment Register B-Unit be returned to respondent No.2-Government Medical College and Hospital, Sector 32, Chandigarh (appellant in F.A. No.257 of 2011), if it so required, against valid receipt and on proper identification. It is further directed that the said original register shall be kept, in safe custody, by the Hospital till the decision of Revision Petition, if any filed by the parties.
Pronounced.
9.8. 2012 [JUSTICE SHAM SUNDER[RETD.] PRESIDENT [NEENA SANDHU] MEMBER mp STATE COMMISSION (First Appeal No. 195 of 2011 ) Present:-Sh. Sandeep K. Sharma, Adv. for the appellants.
Sh.
Vikram Anand, Adv. for respondents No.1 & 2.
Sh.Rajneesh Chadwal, Adv. for respondent No.3 (proforma respondent) Dated the 9th day of August, 2012 ORDER Vide our detailed order of even date, recorded separately, this appeal alongwith FA No.257 of 2011 titled as Government Medical College and Hospital, Sector 32, Chandigarh Vs. Ms. Geeta Rani Kakkar & anothers has been dismissed with no order as to costs.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER(Retd.) PRESIDENT mp STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. 257 of 2011 Date of Institution 28.9.2011 Date of Decision 9.8.2012 Government Medical College & Hospital, Sector 32, Chandigarh, through its Director Principal.
---Appellant/OP No.2 Versus 1 Ms. Geeta Rani Kakkar w/o Sh. Gurwnditta Kakkar
4. Tulika Kakkar (minor) d/o Late Shri Hitender Kakkar, through her grand mother Smt. Geeta Rani Kakkar
5. Gurwnditta Kakkar son of Sh. Thakur Dass Kakkar, All are residents of Plot No.21, Sector 2, Industrial Area, Kurukshetra(Haryana).
.Respondents/complainants Present: Sh. Vikram Anand, Adv. for the appellant.
Sh. Sandeep K. Sharma, Adv.
for the respondents.
MRS. NEENA SANDHU, MEMBER For orders, see the orders passed in First Appeal No. 195 of 2011 titled as Geeta Rani Kakkar and others Vs. Chandigarh Administration through Health Secretary and others vide which this appeal has also been dismissed with no order as to costs.
Copies of this order be sent to the parties free of charge.
Pronounced.
9.8.2012 sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER