State Consumer Disputes Redressal Commission
Dr. Yogesh Anant Thigale, vs Sau Kamlabai Ramdas Zambre, on 14 December, 2009
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.1902 of
2003 Date of filing: 19/12/2003
In Complaint
No.190/1998 Date of order: 14/12/2009
District Forum: Nashik.
Dr. Yogesh Anant
Thigale,
Partner of Sushrusha
Clinic,
Dindori, Tal. Dindori,
Dist: Nashik.
..Appellant
(Org. Opposite Party
No.2)
V/s.
1.
2.
3.
4.
Sau Kamlabai Ramdas Zambre,
Nilesh Ramdas Zambre,
Santosh Ramdas Zambre,
Vilas Ramdas Zambre,
All residents of Ozer Khed Colony,
Unanda Nagar, Tal. Dindori,
Dist. Nahsik.
..Respondents
(Org. Complainants)
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Mr. S.S. Prabhavalkar, Advocate for the Appellant.
None for the Respondents
-: O R D E R :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:(1)
Being aggrieved by the judgement and award passed by District Forum Nashik in Consumer Complaint No.190/1998 decided on 02.12.2003 the Original Opposite Party No.2 has filed this appeal. While allowing the complaint filed by Complainant, the forum below had directed Opposite Party No.2 to pay sum of Rs.2,00,000/- to the Complainants as compensation and also directed to pay further amount of Rs.12,000/- under three heads. As such original Opposite Party No.2 Dr. Yogesh Thigale has filed this appeal taking strong exception to the award passed by the District Forum Nashik.(2)
Facts to the extent material may be stated as under:
Shri Yogesh Thigale, Opposite Party No.2 and Shri Anant Thigale, Opposite Party No.1, both of them are running Sushrusha Hospital, at Dindori, Tal. Dindori, District Nashik. According to Complainant, Complainant No.1 Smt. Kamlabai Ramdas Zambre, is the widow and Complainant Nos. 2, 3 and 4 are sons of the deceased Ramdas Zambre, resident of Ozer Khed Colony, Unanda Nagar, Tal. Dindori, District Nashik. The Complainant pleaded that Opposite Party No.1 Dr. Anant Thingale is father of Opposite Party No.2 - Dr. Yogesh Thigale. On 06.07.1997 Ramdas was having cough and cold of unbearable nature. Hence, he was taken to Sushrusha Cinik at Dindori, at about 02.00 to 02.30 p.m. Opposite Party No.2 - Dr. Yogesh Thigale was present. Opposite Party No.1 was absent. Opposite Party No.2 examined Ramdas and gave one injection to him. After sometime Ramdas was feeling uncomfortable. He was feeling giddiness. He fell down in the hospital itself. Immediately Opposite Party No.2 was informed. Opposite Party No.2 again examined patient and told that patient was having respiratory problem and he needed oxygen, but, since his hospital was sot having oxygen he suggested that patient should be taken to Government hospital at Dindori. He was tried to be given saline but, saline could not be administered. The patient was emitting water from his mouth. He was not in a position to speak. He became motionless. Opposite Party No.2 - Dr. Yogesh Thigale, therefore decided to take patient to Rural Hospital in his own Maruti Car. The patient was examined by Doctor and nurse in rural hospital at Dindori at about 03.00 to 03.30 p.m. Doctors could do nothing. Thereafter it was suggested to them that patient was serious and should be taken to District Hospital, Nashik. In the same Maruti Vehicle Opposite Party No.2 Dr. Yoagesh Thigale, took patient and his relatives to Civil Hospital, Nashik. But, while going to Nashik Civil Hospital, near Mery Institute Dr. Yogesh Thigale, stopped vehicle and got down from the vehicle and asked others to take patient to Civil Hospital Nashik. The patient was taken to Civil Hospital, Nashik around 04.45 p.m. to 05.15 p.m. But doctor declared him dead. Opposite Party No.2 Doctor slipped from the hospital without telling anything to the Complainant. Complainants pleaded that deceased Ramdas Zambre was working in Irrigation Department and because of injection given by Opposite Party No.2 deceased Ramdas Zambre lost his life. Complainants therefore lodged police complaint against Opposite Party No.2 Doctor, Police registered offence vide Criminal Case No.53/1997 u/sec. 304A of I.P.C. It was revealed in the course of investigation that Opposite Party No.2 Doctor was having Homeopathy degree, he had done D.H.M.S and he could not give allopathic injection. So, there was deficiency in service and therefore, Complainant filed consumer complaint and claimed Rs.3 lac as compensation, Rs. 1 lac towards mental and physical harassment and Rs.5,000/- on account of funeral and other expenses. In total they claimed amount of Rs.4,05,000/- from both the Opposite Parties.(3)
Opposite Party Nos. 1 and 2 have filed written statement and contested the complaint. According to them Opposite Party No.1 Dr. Anant Thigale was registered medical practitioner and he was in law allowed to practice allopathy. Opposite Party No.2 helped Opposite Party No.1 in his practice. The deceased Ramdas was examined by Opposite Party No.1 and as he decided to give bestrapain injection, he was given test dose. However, it was found that Ramdas before coming to clinic vomited considerably and he was restless. His condition was precarious. He had also consumed mango juice and while coming to Dindori he had taken non-veg lunch. Opposite Party No.2 under the guidance of Opposite Party No.1 gave him injection as a test dose and the patient was asked to sit on the bench. But, he was getting bouts of cough and he also vomited. Therefore, Complainant No.1 to prevent omitting coming out put swab of cloth at the mouth of the deceased with the result that the deceased could not breath properly. He became more restless. He was given necessary treatment. He required supply of oxygen, hence, he was taken to rural hospital at Dindori and since there was no necessary machine, he was being taken to District Hospital, Nashik. After examination of the patient he was declared dead. The Doctors pleaded that Ramdas Zambre died because he was having respiratory problem and he had consumed mutton etc. He had also consumed alcohol and since he was not permitted to omit by putting cloth swab on his mouth and nose, there were obstructions to his respiratory system, with the result that the patient died of asphyxia death. They pleaded that they were not guilty of deficiency of service. They pleaded that they had not charged anything to the Complainants. They treated the patient free of costs and therefore, they were not liable to pay any compensation to the Complainants. They, therefore, pleaded that complaint should be dismissed with costs.
(4)Complainants filed Affidavit and both the Doctors also filed affidavit and affidavit of two persons in support of their case and considering those Affidavits and documents placed on record, the forum below held that Opposite Party No.2 was guilty of deficiency in service because he had given injection of allopathic stream though he was not having any degree in allopathy and he was permitted to practice in homeopathy stream only. The forum below as such held that Opposite Party No.2 singularly guilty of negligence in administering the bestrapain injection and causing death of the patient and allowed the complaint partly only against opposite party No.2 and directed him to pay sum of Rs.2,12,000/- and complaint against Opposite Party No.1 Doctor was dismissed. Aggrieved by the award passed against him Opposite Party No.2 - Dr. Yogesh Thigale, has filed this appeal.
(5)We heard submissions of Advocate Mr. S.B. Prabhavalkar for the Appellant. None appeared for the Respondents when the appeal was called out for hearing.
(6)We are finding that the forum below erroneously passed award as against the present Appellant. It is not in dispute that deceased Mr. Ramdas Zambre was having bouts of cough and therefore, he was taken to Sushrusha Hospital of Dr. Anant Thigale and Dr. Yogesh Thigale. It is not in dispute that bestrapain injection was given by Opposite Party No.2, the Appellant herein and after sometime the condition of Ramdas Zambre worsened and then since he needed oxygen he was taken by Dr. Yogesh Thigale, initially to rural hospital at Dindori and then to Civil Hospital, Nashik in his own car to save the patients life, i.e. deceased - Ramdas Zambre. It is not in dispute that he was admitted in Civil Hospital in serious condition and ultimately Doctors at Civil Hospital, Nashik declared him dead. The question is, whether deceased Ramdas Zambre had died because of giving of injection by Appellant Dr. Yogesh Thigale. It is pertinent to note that Dr. Yogesh Thigale was prosecuted by Smt. Kamalabai Ramdas , for an offence u/sec. 304A of I.P.C. Of Course Dr. Yogesh Thigage was charge sheeted by Police of Dindori Police Station u/sec 304A of I.P.C. in Criminal Case No.28/1998, the Ld. Judicial Magistrate First Class, District Nashik delivered judgement running into 14 pages and the Ld. Magistrate acquitted Dr. Yogesh Thigale from an offence punishable u/sec. 304A of I.P.C. So there was a full trial of the Appellant herein in the Court of the Judicial Magistrate First Class, Dindori in District Nashik for the offence u/sec 304A of I.P.C. and the Ld. Judicial Magisrate First Class, after considering evidence on record adduced by the prosecution clearly held that prosecution miserably failed to prove that accused had treated the patient negligently and it caused death of the patient. In the said judgement it has been clearly mentioned in Paragraph-9 by the Ld. Judicial Magistrate First Class that Complainant had not seen that accused was giving injection to Ramdas Zambre. No other witnesses had stated that accused had given injection to the deceased Ramdas in their presence. So, there was absolutely no evidence to show that accused had given injection to Ramdas Zambre. In paragraph no.11 , the Ld. Judicial Magistrate First class observed that death of the patient (Ramdas Zambre) was due to suffocation. The Magistrate also recorded the fact that before getting treatment from the accused, deceased person had taken non-veg meal and due to vomiting some undigested food had obstructed the breathing of the patient and due to which there was suffocation to the patient and he died ultimately. Dr. Shankhapal, Medical Officer had opined that there was trouble of breathing to deceased prior to the death, due to conjected plura and alrynxtiracha and bronchi, suffocation may be obstructed in breathing because of foreign substance and conjected of bronchi. Thus, it is clear that Appellant herein personally had not given injection to deceased Ramdas Zambre. However, what is admitted by the Appellant is the fact that his father was treating the said patient. His father had examined the patient and his father had decided to give injection Bestrapain and to help his father he had given test dose of bestrapain injection to deceased Ramdas Zambre. Now, it is required to be established by the Respondents that because of the injection given, deceased lost his life. No expert evidence has been adduced on behalf of the Respondents. Even post mortem report which was produced before Ld. Judicial Magistrate First Class was not produced before the District Forum and District forum flatly held that Appellant was guilty of medical negligence in treating deceased Ramdas Zambre. The death of Ramdas Zambre was unfortunate, but, there must be piece of evidence on record to establish that deceased Ramdas Zambre died because of bestrapain injection given by Appellant herein. The Post Mortem Report would have been only piece of evidence to point out in accusing finger against the Appellant herein. Since post mortem report was not produced on record, we therefore believe on the judgement of acquittal recorded by judicial Magistrate First Class, District Nashik dated 30th December, 2002, wherein Judicial Magistrate First Class, District Nashik discussed on the basis of evidence given by Post Mortem Surgeon that deceased died due to suffocation. There was no evidence before the Ld. District Forum to establish positively that deceased Ramdas Zambre died because of bestrapain injection allegedly given wrongly by the Appellant herein.
(7)By reading judgment of the forum below, we are finding that the forum below laid emphasis on the fact that Appellant had studied Homeopathy only. He had taken degree of D.H.M.S. and relying on ruling of Apex Court [AIR 1996 Supreme court 2111] the forum below held that Doctor who had studied homeopathy is not permitted to practice in allopathy and that itself proved that he was guilty of medical negligence. This observation of Ld. District Forum is erroneous and bad in law. It has been clearly stated by both the Opposite Parties in the written statement and affidavit that patient was examined by Dr. Anant Thigale who was registered medical practitioner and he had directed his son, the Appellant herein to administer test dose of bestrapain. So on the advice of allopathic Doctor, Appellant had given test dose of bestrapain injection and did nothing else and even if these facts are admitted still the death is not related to giving injection of bestrapain. Death of Ramdas Zambre was due to suffocation, it was asphyxial death. It was not a death caused due to giving of wrong injection as what alleged by Respondents in their Affidavit and complaint and since that injection was given on the prescription given by Dr. Anant Thigale, who was allopathic physician, the Appellant cannot be held guilty of medical negligence on that count itself. We reiterate that death is not caused due to giving of wrong injection as alleged by the Respondents. The death occurred due to obstruction to respiratory system. Dr. Sankhapal, Autopsy Surgeon clearly stated that death was due to suffocation and some foreign body had obstructed the respiratory system of the deceased and therefore, he died due to suffocation and this is the finding recorded by Autopsy Surgeon. The Ld. District Forum clearly erred in law in giving finding without any basis that deceased had died due to wrong injection given by Appellant herein and he put much emphasis on the fact that Appellant was not permitted to practice in allopathy since he was simply having a degree in homeopathy. The whole approach of the forum below was bad in law and as such the award of the forum below cannot be sustainable in law. The award passed by the forum below is required to be set aside by allowing this appeal. As such, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned judgement/award passed by the District Forum Nashik is quashed and set aside and as such, Complaint No.190/1998 stands dismissed.
(iii) Parties are left to bear their own costs.
(iv) Inform the parties accordingly.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member ep