National Consumer Disputes Redressal
Dr. Rahul vs Arvind on 8 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVIEW APPLICATION NO. 251 OF 2017 IN
RP/135/2016 1. DR. RAHUL ...........Appellants(s) Versus 1. ARVIND ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Appellant : Mr. Madhurendra Kumar, Advocate For the Respondent : In person
Dated : 08 Jul 2019 ORDER
PER DR. S. M. KANTIKAR, PRESIDING MEMBER
The dispute relates to 2000, we are in 2019.
1. Heard learned counsel for the revisionist doctor and the respondent complainant in person.
Perused the material on record.
2. This is the case of alleged medical negligence, resulting in the death of the patient (wife of the complainant).
3. The District Forum vide its Order dated 10.07.2002 passed the following Order:
As per Consumer Protection Act, to examine the complaints against the Doctors, evidence is very much necessary. Even if the complainant cross examined the non-applicant, it cannot be presume that the non-applicant gave injections to the wife of complainant. Till the complainant proves that non-applicant treated his wife, the Forum cannot come to any conclusion. Similarly, Viscera Report is still not received, and therefore, actual reason of death is not before the Forum. If in a criminal court, it is proved that the wife of complainant is dead due to the negligence of non-applicant, he may came before the forum for his redressal. Taking into consideration, the forum pass the following order.
ORDER
The complaint of the complainant is returned back to him. After result of Criminal Court, complainant is at liberty to seek redressal of his grievance before this Forum.
(extract from translated copy of District Forum's Order)
4. The complainant appealed in the State Commission. The State Commission heard both sides, appraised the evidence and through its Order dated 03.09.2015 partly allowed the complaint:
12. It is pertinent to note that though the OP/respondent in its written version filed before the Forum, denied that the deceased Milan was brought to him by her husband for treatment, but in his reply given to the complainant's notice, he had admitted that the complainant had brought his wife to his hospital when he was about to close his hospital, but as per request of the complainant and his wife, he had taken the complainant and his wife on his scooter to Rickshaw Stand. He also specifically admitted that the deceased was brought to his hospital on 22/2/2000 at 8 p.m. complaining pain in her stomach and considering her condition, he had advised them to go to Government Hospital.
13. In our view, the OP has deliberately suppressed the aforesaid material facts while submitting his written version/reply before the Forum and, therefore, adverse inference can be drawn against him.
14. It is also not disputed by the OP that police had recorded his statement during the investigation of which copy was filed before the Forum. In that statement, he clearly admitted that he had administered two injections to deceased Milan on 22/2/2000 when she was brought to his hospital by the complainant and then she felt giddiness and, therefore, he took her on his own vehicle to Siddarth Nursing Home at about 9.10 p.m. and at that time in that hospital, one doctor examined her and said that her condition is critical and, therefore, she was referred to Government Medical Hospital.
15. Police also recorded statement of doctor Sudhir Washimkar who was running Siddarth Nursing Home. He also stated in his statement dated 8/7/2000 recorded by police that the OP had brought deceased Milan and her husband to his hospital and on examination of deceased Milan, she was found dead and, therefore, she was referred by him to the Government Hospital. Dr. Sudhir Washimkar also issued a certificate to the police about aforesaid material facts.
16. We find that though the aforesaid statements of OP and Dr. Sudhir Washimkar are not admissible in evidence in a Criminal Case, they can be considered as evidence in a consumer complaint filed under Consumer Protection Act since the provisions of Evidence Act are not applicable to the complaint filed under Consumer Protection Act.
17. We, thus find, no reason to disbelieve the said statement of the OP and Dr. Sudhir Washimkar. Moreover, from post mortem examination report of the deceased Milan reveals two marks of administration of injections on the arm of the deceased Milan and cause of death of deceased Milan as Anaphylactic Reaction. The said post mortem examination report is not disputed by the OP. It is thus proved that the death of deceased Milan was occurred due to the reaction of the two injections given by the OP to her.
18. It is also clear that the OP being a Homeopathic practitioner, is not having any authority to administer allopathic medicines i.e. injections to the patient. Thus, without any authority he administered the said injections of allopathic medicines to the deceased Milan, and as her death is caused due to reaction of the said injections, it proves per se negligence on the part of OP.
19. The only question remains for our decision is about the decision given by the Criminal Court acquitting the OP for the offence punishable U/s 304 (A) of Indian Penal Code (IPC). It is seen on the perusal of the copy of the judgment of the Criminal Court that almost all the witnesses examined by the prosecution turned hostile to the prosecution and, thus, they did not support the prosecutions case and, therefore, benefit of the same was given to the OP by the said Criminal Court and, therefore, the OP was acquitted. It is also pertinent to note that the evidence of the complainant and Dr. Sudhir Washimkar was not recorded by the prosecution (State) before the said court. The said Court has observed in the said decision that summons issued to the witness Waman, Arvind and Sanjiv Kumar returned unserved as they were not found. Thus, it is held by the said Court that the prosecution failed to prove its case against the OP/accused and, therefore, the said Court acquitted him.
20. In our view, the offence charged against accused in a criminal case is to be proved beyond reasonable doubt by the prosecution whereas before the Forum, the case is to be proved on the principal of preponderance of probabilities only. Moreover, the complainant and Dr. Sudhir Washimkar, who are material witnesses, were not examined before the Criminal Court by the prosecution (State) to prove the charge against the OP.
.....
......
ORDER i. The appeal is partly allowed. ii. The impugned order dated 10/07/2002 passed in CC No. 337/00 by the District Forum, Nagpur is set aside. iii. The said complaint is partly allowed. iv. it is directed that the OP/respondent herein shall pay to the complainant/appellant compensation of Rs. 3 lacs with interest @9% p.a. from the date of complaint i.e. from 26/6/2000 till its realization by the complainant. v. The OP shall also pay to the complainant compensation of Rs.25,000/- towards physical and mental harassment and cost of Rs.10,000/-. vi. Copy of the order be furnished to both the parties free of cost.
(extracts of paras 12 to 20 and of the operative portion of the State Commission's Order)
5. The opposite party doctor filed revision petition under section 21(b) of the Act 1986 against the said Order dated 03.09.2015 of the State Commission.
6. This Commission vide its Order dated 22.02.2016 dismissed the revision petition as withdrawn:
Heard learned counsel for the petitioner at length. He sought telephonic instructions from the petitioner, accordingly, the learned counsel for the petitioner wants to withdraw this revision.
Therefore, the revision petition is dismissed as withdrawn.
7. Against the said Order dated 22.02.2016 of this Commission, the opposite party doctor filed Special Leave Petition (C) No.(s). 15407 of 2016 before the Hon'ble Supreme Court.
8. The Hon'ble Supreme Court vide its Order dated 04.07.2016 permitted the petitioner to withdraw his Special Leave Petition:
O R D E R Learned counsel for the petitioner seeks leave of this Court to withdraw the special leave petition with liberty to file a review before the National Consumer Disputes Redressal Commission, New Delhi.
The special leave petition is permitted to be withdrawn with the aforesaid liberty.
9. Following the Order dated 04.07.2016 of the Hon'ble Supreme Court, the petitioner filed the instant review petition against the Order dated 22.02.2016 of this Commission vide which it had dismissed the revision petition as withdrawn.
10. We condone the delay of 432 days in filing the review application, recall our Order dated 22.02.2016 and proceed to hear the revision petition no. 135 of 2016 on merit.
11. This revision petition has been filed by the opposite party doctor against the Order dated 03.09.2015 of the State Commission (Circuit Bench at Nagpur) in First Appeal No. A/03/649, whereby the State Commission has partly allowed the complaint filed by the complainant, held the opposite party doctor liable for medical negligence and awarded compensation.
12. The complainant has alleged that the opposite party doctor was an unqualified person. He gave two injections, one of Baralgan, and another of Dexamethasone, to the complainant's wife (the deceased patient). Immediately after the injections, the patient felt uneasiness and suddenly expired. The opposite party doctor is a diploma holder in homeopathy, and is not qualified to practice allopathy.
13. It is pertinent that in his reply to the legal notice of the complainant, the opposite party doctor has admitted that two injections were given by him to the patient and that she collapsed immediately thereafter. The post mortem report also clearly shows two injection marks, which supports that the opposite party doctor gave two injections.
14. It is, thus, well borne out that opposite party doctor administered two injections to the patient and the patient collapsed immediately thereafter. It is also undisputed that the opposite party doctor was a diploma holder in homeopathy and not a qualified allopath.
15. The District Forum erred in returning the complaint by holding it to be pre-mature in the light of on-going criminal proceedings. In cases of alleged medical negligence, the complainant can seek civil remedy, and, in addition, agitate before professional regulatory bodies like MCI, DCI, etc., irrespective of criminal proceedings if any.
16. Liability for a civil wrong and liability for a criminal offence are different from each other.
The objective of criminal law is to punish, the objective of civil law is to compensate, they essentially differ in their context and consequence. The two are not mutually exclusive, but co-extensive.
17. We do not find any mis-appreciation of evidence or any material irregularity in the well-appraised and well-reasoned impugned Order of the State Commission, wherein the State Commission has held the opposite party doctor as unqualified to practice allopathy and has held him liable for medical negligence.
18. Further, we note that the State Commission awarded compensation of Rs. 3 lakh with interest @9% per annum from 26.06.2000 i.e. from the date of death of the patient.
19. Considering the case in its entirety, and, inter alia, specifically, that the death of the patient occurred in 2000, and we are now in 2019, and the patient died at a young age (in her 20's), and left behind her husband and (as of then) two minor children (one son and one daughter), though it is difficult to quantify life in monetary terms, in our considered view, compensation of Rs. 10 lakh with simple interest @ 12% per annum from the date of arguments before this Commission i.e. from 04.10.2018 would be just and equitable in the totality of the facts and specificities of the case.
20. We also find it fair and appropriate that if the complainant has not re-married the said compensation should be paid equally amongst the complainant (i.e. the husband of the deceased) and the two children of the deceased (i.e. of their deceased mother) and if the complainant has since re-married the said compensation should be paid equally amongst the children of the deceased ( i.e. of their deceased mother), the children, obviously, in 2019, now being adults.
21. Based on the foregoing discussion, the opposite party doctor is directed to pay Rs. 10 lakh as compensation with 12% simple interest per annum from 04.10.2018 (i.e. from the date of arguments before this Commission) till its realisation, within four weeks from the date of pronouncement of this Order, failing which, on expiry of four weeks of the pronouncement of this Order, the District Forum shall forthwith undertake execution as per the law. The District Forum shall disburse the compensation as per the directions contained in para 20 above.
22. The Registry is directed to send a copy each of this Order to both the parties and to the District Forum within ten days of its pronouncement. The complainant (i.e. husband of the deceased) is directed to bring this Order to the notice of the two children of the deceased (i.e. of their deceased mother) within fifteen days of its pronouncement.
23. The District Forum is requested to furnish a report-in-compliance within three months of the pronouncement of this Order. The Registry is requested to follow-up and to place the said report / status before the bench on the case- file within one weeks of its receipt.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER