State Consumer Disputes Redressal Commission
Dr. V.K.Dixit vs Smt. Sangita Dubey & Ors. on 8 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Appeal No.FA/13/184
Instituted on : 06.03.2013
Dr. V.K. Dixit, (M.S.)
Kududand, Near Nagar Sena Camp,
Bilaspur (C.G.) ... Appellant
Vs.
1. Smt. Sangeeta Dubey, Aged about 40 years,
W/o Shri Ashok Dubey, Bangalipara, Sarkanda,
District Bilaspur (C.G.).
2. Dr. Sunita Verma (M.D.),
R/o : Gond Para, In Front of Anjuman School,
Bilaspur (C.G.)
3. The New India Assurance Co. Ltd.,
Through : Manager,
116, Rajendra Nagar Chowk, Link Road,
Bilaspur (C.G.) ... Respondents
Appeal No.FA/13/213
Instituted on : 18.03.2013
1. Dr. Sunita Verma, (M.D.), Aged 62 years,
W/o Dr. S.K. Verma, Gynecologist,
R/o : Near Anjuman School, Gondpara,
Bilaspur (C.G.). .... Appellant
Vs.
1. Smt. Sangeeta Dubey, Aged 46 years,
W/o Shri Ashok Dubey, Bangalipara, Sarkanda,
Bilaspur (C.G.).
2. Dr. V.K. Dixit (M.S.),
U.D.M. Clinic, Kududand,
Bilaspur (C.G.)
3. The New India Assurance Co. Ltd.,
Through : Manager,
116, Rajendra Nagar Chowk, Link Road,
Bilaspur (C.G.) .... Respondents
// 2 //
Appeal No.FA/13/219
Instituted on : 20.03.2013
Smt. Sangeeta Dubey, Aged 40 years,
W/o Shri Ashok Dubey, Bangalipara, Sarkanda,
Bilaspur (C.G.). .... Appellant
Vs.
1. Dr. Sunita Verma, (M.D.),
R/o : Gond Para, In Front of Anjuman School,
Bilaspur (C.G.).
2. Dr. V.K. Dixit (M.S.),
Kududand, Near Nagar Sena Camp,
Bilaspur (C.G.)
3. The New India Assurance Co. Ltd.,
Through : Manager,
116, Rajendra Nagar Chowk, Link Road,
Bilaspur (C.G.) .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES IN BOTH THE APPEALS :-
Shri Shaukat Ali, for the complainant Smt. Sangeeta Dubey.
Shri Mukesh Sharma, for the O.P.No.1, Dr. Sunita Verma (M.D.).
Shri Sunil Otwani, for the O.P.No.2, Dr. V.K. Dixit (M.S.),
Shri Manoj Agrawal, for the O.P.No.3, The New India Assurance
Company Limited.
ORDER
Dated : 08/04/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No. FA/13/184, as well as Appeal No. FA/13/213 and FA/13/219, which have been preferred respectively by the O.P.No.2, O.P.No.1 and the complainant of Complaint Case No.199/2007 against the order dated 20.02.2013 // 3 // passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum"), whereby the complaint filed by the complainant, has been allowed and the O.P.No.1 & 2 have been directed to pay jointly or severally within a period of two months from the date of order a sum of Rs.1,00,000/- as compensation, Rs.75,000/- towards financial loss suffered for subsequent treatment, Rs.20,000/- towards compensation for mental agony and a sum of Rs.3,000/- as cost of litigation to the complainant.
2. The complainant has filed Appeal No.FA/13/219 for enhancement of the amount of award, whereas the O.P. No.1 & O.P.No.2 have filed Appeal No.FA/13/213 & FA/13/184 for setting aside the impugned order of the District Forum. For the purpose of convenience, hereinafter in this order, the parties will be referred as per their original nomenclature in the complaint case. The original of this order be retained in the file of Appeal No.FA/13/184 and its copy be placed in the file of Appeal No.FA/13/213 & FA/13/219.
3. Briefly stated the facts of the case are that the complainant was suffering some problem in her uterus and the complainant contacted with O.P.No.1 Dr. Sunita Verma in her clinic. O.P.No.1 informed the complainant that operation is required to be perform. The complainant paid a sum of Rs.6,000/- to the O.P.No.1 as operation and consultation fee on 16.08.2005. On 17.08.2005 the complainant was // 4 // admitted in Medical College (CIMS), Bilaspur through O.P.No.1. On 22.08.2005, before performing operation anaesthetic injection was administered to the complainant but no effect was caused thereafter again anaesthetic injection was administered and operation of the complainant was performed by the O.P.No.1. Complainant was admitted in Medical College, (CIMS), Bilaspur till 31.08.2005. In the meantime, the urine was flowing from her vagina. She made complaint to the O.P.No.1 and the O.P.No.1 told her that this problem is occurred when the operation is performed but it will cure automatically after some time and complainant was discharged. The complainant was having pain in her abdomen and on 02.10.2005, the flow of urine was increased and O.P.No.1 administered catheter (thaili) and O.P.No.1 took a sum of Rs.500/- as fees from the complainant and the O.P.No.1 instructed the complainant to again come after a week. Urine was not collecting in catheter (thaili) and was going outside from the catheter (thaili). On 03.10.2005, the complainant came to the O.P.No.1 and told the O.P.No.1 regarding her problem. After her examination, the O.P.No.1 told the complainant that urinary bladder was damaged. The O.P.No.1 suggested the complainant to consult with another expert doctor and denied to check up the complainant. Then the complainant had gone to hospital of Dr. S.N. Dubey, where she was admitted near about 6-7 days and incurred expenditure of Rs.10,000/- to 12,000/-. The complainant again // 5 // contacted with the O.P.No.1 but she denied to treat the complainant and then the complainant contacted with Dr. D.R. Patle, who advised her for x-ray and thereafter x-ray was taken by Dr. Anil Agrawal. Thereafter the complainant contacted O.P.No.2 Dr. V.K. Dixit. After examination of x-ray of the complainant, the O.P.No.2 advised the complainant for her second operation. The O.P.No.2 performed operation of the complainant and he told the complainant that pulling of the ureter and it was connected with each other, infection was caused and due to infection the complainant had suffered urinary problem. Complainant paid a sum of Rs.44,000/- to the O.P.No.2. The O.P.No.1 had negligently performed operation and she cut the ureter. The O.P.No.2 was not an Urologist, even then he conducted second operation of the complainant and due to second operation, the complainant suffered serious problem. The O.P.No.2 without properly following the procedure and without having any knowledge conducted second operation of the complainant. The complainant suffered financial, physical problem and mental agony, therefore, the complainant is entitled to get the relief as mentioned in the relief clause of the complaint. The O.P.No.1 has obtained fees from the complainant and after obtaining fees from the complainant, the O.P.No.1 performed her operation, therefore, the complainant is "consumer" and O.P.No.1 is "service provider". The O.P.No.1 & // 6 // O.P.No.2 committed medical negligence and their act come within purview of deficiency in service and unfair trade practice.
4. The O.P.No.1 filed written statement and averred that the complainant is not a consumer of O.P.No.1.The O.P.No.1 is posted in Government Hospital, therefore, as per law laid down by Hon'ble Supreme Court in the case of Indian Medical Association vs. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), the complainant is not a consumer of O.P.No.1. The complainant came to the O.P.No.1 on 16.08.2005 with complaints DUB Cum weakness and irregular bleeding PV with backache. The complainant told the O.P.No.1 that she is not in a position to make expenditure at private hospital. She was advised for hysterectomy to be carried out at Medical College (CIMS), Bilaspur. The complainant came to Medical College (CIMS), Bilaspur and was admitted in the Hospital for her treatment and was discharged on 31.08.2005. Her post operative period was uneventful. The O.P.No.1 never charge any fees from the complainant. Surgery was performed on 22.08.2005 at Medical College (CIMS), Bilaspur and anaesthesia is administered in the complainant by anaesthetist, not by O.P.No.1. There was no sign of dribbling urine in post operative period, post operative period was uneventful as mentioned in the discharge card. If the complainant suffered any problem of dribbling of urine, she could not have been discharged from the hospital. On // 7 // 02.10.2005, the complainant came to O.P.No.1 with problem of leakage of urine and she was unable to control, then it was suspected by the O.P.No.1 that she is suffering from Vesico Veginal Fistulae and she was referred to Dr. D.R. Patle, who is dealing such type of cases in Medical College (CIMS), Bilaspur. V.V.F. is known complication in hysterectomy surgeries, as soon as the O.P.No.1 suspected VVF, she referred the complainant to proper Doctor available at Medical College (CIMS), Bilaspur, therefore, the O.P.No.1 has not committed any deficiency in service. The O.P.No.1 never referred the complainant to Dr. S.N. Dubey. The complainant was treated by O.P.No.1 properly as per norms laid down in the standard medical. Ureteric injuries are known complication of Hysterectomy which is supported by the medical literature submitted in which the reported incidence of ureteric injuries during hysterectomy is 1% to 4% in international standards. O.P.No.1 is having MD in Gynecology and she is possessing requisite degree. The O.P.No.1 has not committed any deficiency in service.
5. The O.P.No.2 has filed his written statement and averred that the O.P.No.1 is a renowned surgeon in the Bilaspur region and he has obtained degree of Master of Surgery (General Surgery) from recognized and renowned college Sawai Mansingh Medical College, Jaipur affiliated with Rajasthan University and the O.P.No.2 possess // 8 // requisite skill to perform the surgery of Uretero Vaginal Fistula. On 14.10.2005 the complainant came to him along with X-ray report of Dr. Anil Agrawal. Dr. Anil Agrawal reported that there is moderate degree of hydroneplurosis and hydroureter on left side; with persistent non-visualisation of about 2 to 2 ½ cms. long segment of lower end of the left ureter ? injured lower end of left ureter. Urine was continuously leakaging fromureter. Varius diagnosis test was conducted on the complainant and microscopic test was also done. Then O.P.No2 found that left ureter of the complainant was injured and urine was coming to uterus and he advised for operation. Hysterectomy was performed by the O.P..No.2 and during the course of Hysterectomy, the complainant has sustained injuries to the ureter. The O.P.No.2 has further averred that it is a common complication which occurs during the process of Hysterectomy. The O.P.No.2 is well known for his professional ethics and integrity. The O.P.No.2 has performed his duty properly according to the medical jeo-prudence. The O.P.No.2 conducted surgery after following all necessary precautions and operation performed by the O.P.No.2 was successful and the leakage of urine through her vaginal area has completely stopped. The complainant was offered best post operative care and support. The complainant was admitted in nursing home of O.P.No.1 and there was no complaints with regard to her health. After close monitoring and observation she had been discharged from the nursing // 9 // home of the O.P.No.1.. Therefore, the O.P.No.1 did not commit any medical negligence and deficiency in service, hence the complainant is not entitled for getting any compensation form the O.P.no.1 and the complaint is liable to be dismissed.
6. The O.P.No.3 has filed its written statement and denied the allegations made against it by the complainant in the complaint and averred that no cause of action has accrued against it, therefore, the complaint is liable to be dismissed.
7. The complainant filed documents. A/D 1 is slip of CIMS dated 13.06.2005, document 2 is prescription slip of Dr. Sunita Verma dated 16.08.2005, document 3 to 8 are slip of CISM issued on various dates, A/D - 5 is slip issued by CIMS, A/D-10 is slip of CIMS, A/D-11 is Investigation Report, AD-12 is report of G.B. Pathology Laboratory, A/D-13 is Investigation Report (Hematology) issued by CIMS, A/D-14 is Investigation Report issued by CIMS, AD-15 is report of CIMS, A/D-16 is Admission and Discharge Record Be Head Ticket, A/D-17 & A/D-18 are prescription slip issued by CIMS, A/D-19 is report issued by CIMS, A/D 20 is Anaesthesia Record of CIMS, A/D-21 is Discharge Ticket of CIMS, A/D-22 is Discharge Ticket ofCIMS, A/D 23 is Bed Head Ticket of Sardar Patel Hospital, Bilaspur, A/D 24 is Bed Head Ticket of Sardar Patel Hospital, Bilaspur, A/D 25 is details regarding treatment, A/D-26 is prescription slip, A/D-27 is // 10 // prescription slip, A/D-28 is bill issued by Apna Dawai Dukan, A/D- 29 and A/D-30 are treatment slip, A/D-31 is report of CIMS, A/D-32 is Discharge Ticket, A/D-33 is prescription slip of Dr. Sunita Verma. A/D-34 to A/D-41 are bills, A/D-42 is prescription slip of Shiva Diagnostic Cente, A/D-43 is bill dated 04.10.2005 of Shiva Diagnostic Centre, A/D-44 is report dated 04.10.2005 of Agrawal's X-Ray & Sonography, A/D-45 is opinion of Dr. A.K. Agrawal, A/D-46 is receipt, A/D-47 is bill issued by Ashok Medical Stores, A/D-48 is report of Dr. Agrawal's X-ray Sonography, AD-49 is prescription slip of U.D.M. Surgical Centre and Urology Clinic, A/D-50 is Cystoscopy report, A/D 51 is prescription slip of U.D.M. Surgical Centre and Urology Clinic, A/D -52 is Urinolysis Report, A/D-53 is report of Advanced Diagnostic Centre, A/D - 54 is Urinolysis Report, A/D-55 is report of U.D.M. Surgical Centre Pathology Clinic, A/D-57 is bill of Ashok Medical Stroes, A/D-58 is Discharge Ticket of U.D.M. Hospital, A/D-59 is report of U.D.M. Surgical Centre Pathology Clinic, A/D-60 is report of U.D.M. Surgical Centre Urology Clinic, A/D-61 to A/D-67 are bills of Ashok Medical Stores, A/D-58 is report of Advanced Diagnostic Centre, A/D-69 is bill of Ashok Medical Stores, A/D-70 is report of Dr. Agrawal's X-ray & Sonography, A/D-71 & A/d-72 are receipt issued by Agrawal's X-ray & Sonography, A/D-73 is Urinolysis Report, A/D-74 & A/D-75 are prescription slip of U.D.M. Surgical Centre and Urology Clinic, A/D-75 is Urinolosis Report, // 11 // A/D-76 is bill of Ashok Medical Stores, A/D-78 is report of U.D.M. Surgical Centre & Urology Clinic, A/D-79 & A/D 80 are bills of Ashok Medical Stores, A/D-81 is prescription slip of U.D.M. Surgical Centre & Urology Clinic, A/D 82 are prescription slips issued by Dr. V.K. Dixit, A/D-83 is prescription slip dated 09.02.2006 of U.D.M. Surgical Centre & Urology Clinic, A/D-84 is bills of Ashok Medical Stroes, A/D-87 is receipt of Naresh Bazar, A/D-88 is report of Advanced Diagnostic Centre, A/D-89 is prescription slip of U.D.M. Surgical Centre and Urology Centre, A/D-90 to A/D-92 are bills, A/D-93 is Urine Analysis report, A/D-94 is bill, A/D-95 is bill, A/D- 96 is Bacterial Culture & Antibiotic Sensitivity report, A/D-97 to A/D-100 are bills, A/D-101 is prescription slip, A/D-102 to A/D-106 are receipt and bills, A/D-107 is railway ticket, A/D-108 and A/D- 109 bill issued by Kamra Medicals, A/D-110 is receipt issued by Suyash Hospital, A/D-112 is report of Dr. Agrawal's X-ray & Sonography, A/D-113 are bills of Dipti Medical Stores, A/D-114 is bill issued by Apollo Hospital, Bilaspur, A/D-116 is prescription slip of Apollo Hospitals, Bilaspur, A/D-117 is Estimate. The clarification given by J.L.N. Hospital.
8. O.P.No.1 Dr. Sunita Verma, has also filed some literature.
9. O.P.No.2 Dr. V.K. Dixit, has filed photocopy of register Sl.No.479 maintained by U.D.M. Hospital and summary of treatment.
// 12 //
10. Shri Mukesh Sharma, learned counsel appearing for O.P.No.1 Dr. Sunita Verma (appellant in Appeal No.FA/13/213) has argued that O.P.No.1 never obtained any fees from the complainant. The complainant was admitted in Medical College (CIMS), Bilaspur, which is Government Hospital and no fees was taken from the complainant for her treatment and free services were provided to the complainant in the hospital, therefore, the O.P.No.1 is not a service provider. He further argued that the O.P.No.1 is an expert Gynecologist and she treated the complainant as per norms laid down in the standard medical jurisprudence. The operation of the complainant was successfully performed by the O.P.No.1 and ureteric injuries some time occurs. If some ureteric injuries were found, then it does not come within medical negligence. The O.P.No.1 did not commit any deficiency in service or medical negligence. The complainant has utterly failed to prove that the O.P.No.1 committed deficiency in service or medical negligence, therefore, the impugned order passed by the District Forum, is erroneous and is not sustainable in eye of law.
11. Shri Sunil Otwani, learned counsel appearing for O.P.No.2 Dr. V.K. Dixit (appellant of Appeal No.FA/13/184) has argued that the impugned order passed by the learned District Forum is perverse, illegal and contrary to material on record. There is no material evidence on record to fasten the liability upon the O.P.No.2. Learned // 13 // District Forum did not obtain expert opinion. When complaint is received against a doctor or a hospital, it is duty of the District Forum to obtain a report from competent doctor or a committee of doctor specialized in the field relating to which the medical negligence is attributed and only after obtaining report to the effect that there is a prima facie case of medical negligence, the case of medical negligence should be registered and notice be issued to the concerned doctor/hospital, but in the instant case, learned District Forum did not obtain any expert opinion. He further argued that O.P.No.2 did not committed any medical negligence. He perform second operation of the complainant properly and operation was successful and no medical negligence was committed by O.P.No.2. O.P.No.2 has correctly diagnose the problem of the complainant and has acted with due diligence and care The learned District Forum has wrongly reached to the conclusion that O.P.No.2 has committed medical negligence and deficiency in service, therefore, the impugned order passed by the learned District Forum, is suffering from inherent irregularity and illegality, hence is liable to be set aside. He placed reliance on judgment of Hon'ble Supreme Court in Dr. C.P. Sreekumar M.S. (Ortho) vs. S. Ramanujam, 2009 AIR SCW 3878; judgment of Hon'ble National Commission in Sh. Tarun Garg vs. Dr. R.K. Gupta, 2014 (3) CPR 80 (NC) and Code 1.1.1 of Code of Medical // 14 // Ethics of The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
12. Shri Manoj Agrawal, learned counsel appearing for the O.P.No.3 (respondent No.3 in Appeal No.FA/13/184, FA/13/213 and and FA/13/219) has supported the arguments advanced by the O.P.No.1 (appellant of Appeal No.FA/13/213) and O.P.No.2 (appellant of Appeal No.FA/13/213).
13. Shri Shaukat Ali, learned counsel appearing for the complainant Smt. Sangeeta Dubey (appellant in Appeal No.FA/13/219) has supported the impugned order passed by the learned District Forum and submitted that O.P.No.1 & O.P.No.2 both have committed medical negligence and both are not qualified for performing Hysterectomy , therefore, O.P.No.1 & O.P.No.2 both have committed medical negligence and deficiency in service. The impugned order passed by the learned District Forum is well reasoned order and does not call for any interference by this Commission. He placed reliance on judgment of this Commission in Reeta Anjana Sahu vs. Dr. Y.R. Krishna & Anr. II (2006) CPJ 155, judgments of Hon'ble National Commission in Ramesh Jain (Dr.) & Anr. vs. Jagroop Singh & Ors., I (2008) CPJ 233 (NC); judgment of Delhi State Consumer Disputes Redressal Commission, New Delhi in S.C. Mathur & Ors. Vs. All India Institute of Medical Sciences & Ors. III // 15 // (2006) CPJ 414; judgment of Hon'ble Supreme Court in Martin F. D'Souza vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC); judgment of Union Territory Consumer Disputes Redressal Commission, Chandigarh in Jaswant Lal vs. General Hospital & Ors. III (2008) CPJ 230 .
14. Firstly, we shall examine whether the complainant is consumer of O.P.No.1 ?
15. The Hon'ble Apex Court in the case of Indian Medical Association Vs. V.P. Shantha & ors. (Supra), in paragraph No.55, after discussing the whole Law on the subject, following conclusions have been drawn by the Hon'ble Apex Court. Paragraph No.55 reads as under : -
"55. On the basis of the above discussion, we arrive at the following conclusions;
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
(3) A "contract of personal service" has to be distinguished from a "contract for personal services". In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a // 16 // medical practitioner to the patient cannot be regarded as service rendered under a 'contact of personal service'. Such service is service rendered under a "contract for personal services" and is not covered by exclusionary clause of the definition of 'service contained in Section 2(1)(o) of the Act.
(4) The expression "contract of personal service" in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1)(o) of the Act.
(5) Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be 'service' as defined in Section 2(1)(o)of the Act.
The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service-is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression 'service' as defined in Section 2(1)(o) of the Act.
(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in section 2(1)(o) of the Act irrespective of the fact // 17 // that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be 'service' and the recipient a 'consumer' under the Act.
(9) Service rendered at a government hospital/health centre/dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service- is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be 'service' and the recipient a 'consumer' under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1)(o) of the Act."
16. In the instant case, the complainant specifically pleaded that she had gone to clinic of the O.P.No.1 and consulted with her, she told her that operation of her uterus is required to be conducted and the // 18 // O.P.No.1 took a sum of Rs.6,000/- as fees from the complainant and complainant was admitted in Medical College (CIMS), Bilaspur on 17.08.2005. The complainant also pleaded that second time the O.P.No.1 took Rs.500/- towards fees from the complainant. This allegation was supported by affidavit of the complainant.
17. Looking to sub para 9 & 10 of para 55 of the Judgment passed in the case of Indian Medical Association Vs. V.P. Shanta & Ors., (Supra), it clearly shows that "Service rendered at a government hospital / health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the express 'service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be 'service' and the recipient is a 'consumer' under the Act."
18. In the instant case, the complainant specifically pleaded that she paid a sum of Rs.6,000/- to the O.P.No.1 in her clinic and thereafter she was admitted in Medical College (CIMS), Bilaspur. It appears that initially the complainant contacted with O.P.no.1 in her clinic and thereafter she was admitted in Medical College (CIMS), Bilaspur. Even if we presume that O.P.No.1 did not obtain any fees from the complainant in Medical College (CIMS), Bilaspur and // 19 // rendered her services to the complainant free of charge, but earlier she obtained fees from the complainant at her clinic, therefore, the O.P.No.1 is service provider as mentioned in Section 2(1)(o) of the Consumer Protection Act, 1986, Even if the O.P.No.1 rendered her services free of charge in Medical College (CIMS), Bilaspur, then also provisions of the Consumer Protection Act, 1986 will apply because the amount under various heads were certainly paid by the complainant , therefore, the complainant is consumer of O.P.No.1. The O.P.No.1 is service provider and the complainant is consumer because medical services which were rendered by the O.P.No.1 to the complainant come within service under Section 2(1)(o) of the Consumer Protection Act, 1986.
19. In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, he has mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express.
'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptieable to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect.
// 20 // Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exist inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery.
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or otherwise in a particular case.
(1) Duty of care in accepting the patient for treatment. (2) Duty of care in providing appropriate treatment. (3) Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery.
Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories :-
(1) Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved.
// 21 // (2) Negligence at the level of patient himself or his attendants also known as contributory negligence.
(3) Negligence at the level of manufacturers of drugs, equipment etc. and dispensers.
(4) Composite negligence i.e. at more than one of the above 3 levels.
Negligence of first category may further be sub-classified into two categories viz.
(i) Individual liability of a medical professional.
(ii) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :
1. Medical mistakes.
2. Clinical negligence.
3. Surgical mistakes
4. Misplaced injection."
20 In P.B. Desai (Dr.) vs. State of Maharashtra & Anr. IV (2013) CPJ 63 (SC), Hon'ble Supreme Court has held that:
"31. However, a failure to act, by itself does nothing to screen out mere fantasies. It is the actor's failure to act in the light of his capacity to do so that suggests the actor's willingness to go beyond mere fantasizing and to have the harm or evil of the offence occur. Even then however, the screening effect seems weak; "letting something happen"
simply does not carry the same implication of resolute intention that is shown in causing something to happen by affirmative action. While an actor's failure to perform a legal duty provides some evidentiary support for the existence of an intention to have the harm or evil occur, the force of the implication is similarly week. Inaction often carries no implication of intention unless it is shown that the actor knows of his or her duty to act and the opportunity to do so.
32. Liability for an omission requires a legal duty to act; a moral duty to act is not sufficient. The duty may arise either from the offence definition itself or from some other provision of criminal or civil law. A duty arises from the former when an offence is defined in terms of omission. This is the situation where the Legislature has made it an offence. A legal duty to act may also be created by a provision of either criminal or civil separate from the offence charged. For example, a duty // 22 // under the Maharashtra Medical Council's Code of Ethics and Maharashtra Medical Council Act, 1965.
39. It is not necessary for us to divulge this theoretical approach to the doctor-patient relationship, as that may be based on model foundation. Fact remains that when a physician agrees to attend a patient, there is an unwritten contract between the two. The patient entrusts himself to the doctor and that doctor agrees to do his best, at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to teat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of these responsibilities may be recapitulated, in brief :
(a) to continue to treat, except under certain circumstances when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing."
(d) Not to undertake any procedure beyond his control:
This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating complicated case.
(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/ knowledge which he comes to learn in confidence from his patient and such a communication is privileged communication.
Conclusion: The formation of a doctor-patient relationship is integral to the formation of a legal relationship and consequent right and duties, forming the basis of liability of a medical practitioner, due to the very nature of the medical profession, the degree of responsibility on the practitioner is higher than that of // 23 // any other service provider. The concept of a doctor- patient relationship from the foundation of legal obligations between the doctor and the patient. In the present case, as already held above, doctor-patient relationship stood established, contractually, between the patient and the appellant.
(2) Duty of Care which a doctor owes towards his patient.
40. Once, it is found that there is 'duty to treat' there would be a corresponding 'duty to take care' upon the doctor qua/his patient. In certain context, the duty acquires ethical character and in certain other situations, a legal character. Whenever the principle of 'duty to take care' is founded on a contractual relationship, it acquires a legal character. Contextually speaking, legal 'duty to treat' may arise in a contractual relationship or Governmental hospital or hospital located in a public sector undertaking. Ethical 'duty to treat' on the part of doctors is clearly covered by Code of Medical Ethics, 1972. Clause 10 of his Code deals with 'Obligation to the Sick' and Clause 13 cast obligation on the part of the doctors with the captioned "Patient must not be neglected". Whenever there is a breach of the aforesaid Code, the aggrieved patient or the party can file a petition before relevant Disciplinary Committee constituted by the concerned Stated Medical Council.
21. In Malay Kumar Ganguly vs. Dr. Sukumar Mukharjee and others 2009) 9 SCC 221, Hon'ble Supreme Court has observed thus :-
"The standard of duty to care in medical services may also be inferred after factoring in the position and stature of doctors concerned as also the hospital : premium stature of services available to patient certainly raises a legitimate expectation. The Court is not oblivious that source of the said doctrine is in administrative law. A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, would not be quite out of place. AMRI makes a representation that it is one of the best hospitals in Kolkata and provides very good medical care to its patients. Senior Counsel // 24 // appearing for the respondents, when confronted with the question in regard to maintenance of the nurses' register, urged that it is not expected that in AMRI regular daily medical check-up would not have been conducted. The Court thought so, but the records suggest otherwise. The deficiency in service emanates therefrom. Even in the matter of determining deficiency in medical services, if representation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in services would be presumed".
"Patients, by and large are ignorant about disease or side of adverse effect of a medicine. Ordinarily patients are to be informed about admitted risk, if any. If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout. It was not done in the instant case. Law on medical negligence also has to keep up with advances in medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatment especially when line of treatment is a contested one, and hazards are involved. Standard of care in such cases will involve duty to disclose to patients about risk of serious side effects or about alternative treatments. In the times to come, litigation may be based on theory of lack of informed consent. A significant number of jurisdictions determine existence and scope of doctor's duty to inform based on information a reasonable patient would find material in deciding whether or not to undergo proposed therapy. In this respect, the only reasonable guarantee of a patient's right of bodily integrity and self-determination is for the courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause. At the same time, a reasonable measure of autonomy for doctor is also pertinent to be safeguarded from unnecessary interference".
// 25 //
22. In M/s Singhal Maternity and Medical Centre & Anr. vs. Master Nishant Verma & Ors., 2014 (2) CPR 464 (NC), Hon'ble National Commission has observed thus :-
"11. What constitutes medical negligence based on the touchstone of the Bolam's test [Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582], is well settled through a number of judgments of the Hon'ble Supreme Court, including in Jacob Mathew Vs. State of Punjab & Anr. (supra) and Indian Medical Association vs. V.P. Shantha and Ors. [(1995) 6 SCC 651]. Gleaned from these judgments, the issues pertaining to what constitutes medical negligence, inter alia are (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; and (ii) Whether the doctor adopted the practice of clinical observation diagnosis - including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field. In this connection, the Hon'ble Supreme Court in Jacob Mathew (supra) elaborating on the degree of skill and care required of a medical practitioner quoted Halsbury's Laws of England (4th Edn., Vol. 30, para 35, as follows :-
"35. The practitioner must bring to his task a reasonable degree of Skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competent, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operation in a different way,.."
// 26 //
23. In this context it is relevant to cite case of Kusum Sharma & ORS. Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
'Para" 90" In Jacob Mathew's case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
(1) Negligence is the breach of a duty caused by omission to do something which is a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good.
Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
// 27 // (3) The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. Para "94'. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
// 28 // V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals or clinics for extracting uncalled for compensation.
// 29 // Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
24. In Dr. Laxman Balkrishna Joshi v. Dr. Trimnsk Bapu Godbole and anothert, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed that "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose, such a person when consulted by a patient owes him certain duties, viz.. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires".
25. It is admitted fact that the complainant was admitted in Medical College, (CIMS) Bilaspur on 17.08.2005 and operation was performed // 30 // by O.P.No.1 on 22.08.2005. It is also not disputed that complainant also contacted with O.P.No.2, who also performed second operation of the complainant.
26. Now we shall examine whether the O.P.No.1 Dr. Sunita Verma, committed while performing Hysterectomy and O.P.No.2 Dr. V.K. Dixit is competent to perform Ureteroneocystostomy ?
27. In Sonography report of Dr. Anil Agrawal, it is mentioned thus:-
"Dr. Anil Agrawal 04.20.2005 ...........................
*L.T. Kidney is normal in size, shape & outline with normal echotexture. No focal parenchymal lesion seen. No evidence of stone, hydronephrosis or any mass lesion seen.
*Bladder : Catheterised. Wall appears intact and regular. Sediments seen. *Uterus & Ovaries : removed.
*Abdominal Cavity : No free fluid seen in peritoneal cavity, IVC and aorta are of normal caliber.
*Lymph nodes : No pre or para-aortic lymphadenopathy seen. Impression : Normal U.S. study.
As per sonography report of the complainant, the condition of the internal parts of the body is normal. On 04.10.2005, Dr. Anil Agrawal has provided another test report to the complainant, which is as under :
Dr. Anil Agrawal. 04.10.2005
Smt. Sangeet Dubey, 38 Years, F.
// 31 //
Ref. : Dr. D.R. Patle, M.S.
For Skiagram Micturating Cysto-urethrography. Report :
The cysatogram taken after instilling about 250 mls., of the diluted dye, shows normal filling of the dye in the urinary bladder with smooth margins and no residual urine is seen in the post-voiding skiagram.
The micturating cystourethrogram taken in right and left Lateraloblique positions show that the urethrea is normal. No demonstrable V.V.F., Vesico- ureteric reflux or any other abnormality detected.
Opinion : A normal cysto-urethrogram (The findings need to be correlated clinically and with other investigation.).
After above test report, the condition of the complainant was found normal. As per instruction of Dr. V.K. Dixit, the complainant again went to Dr. Anil Agrawal on 14.10.2005 for test, relevant part of the report is thus :-
Dr. Anil Agrawal. 14.10.2005 Smt. Sangeeta Dubey, 38 years, F Ref.. Dr. V.K. Dixit, M.S. For skiagram Intravenous pyelography Report :-
.......................
The right ureter and the urinary bladder are normal.
There is moderate degree of hydronephrosis and hydroureter on left side; with persistent non-visualistion of about 2 to 12 ½ cms. Long segment of lower end of the left ureter - ? injured lower end of left ureter.
(The finding need to be correlated clinically and with other investigations.)"
According the above report, it was found after performing first operation Hysterectomy that lower end of left ureter was damaged // 32 // and there is non-visualisation of about 2 to 2 ½ cms. Long segment of lower end of the left ureter, from which it is clear that during performing first operation while removing uretus, the left ureter of the complainant was cut. Cystoscopy of complainant was done and report dated 15.10.2005 as under :-
Dr. V.K. Dixit. 15.10.2005 Name Sangeeta Dubey AGE/SEX 38F Cystoscopy Report. Urinary Bladder :-
Normal capacity, Mucosa normal. No inflammation. Trabeculations not present. No growth, calculus or devierticulum seen. Ureteric orifices normally situated but could not be canulated."
28. The O.P.no.1 has filed a literature in which it is mentioned thus:-
"Vesicovaginal and Ureterovaginal Fistula. Author Sandip P. Vasavada, MD Chief Editor, Bradley Fields Schwartz, DO FACS updated Sep. 14 , 2011 Pathophysiology.
Unrecognized bladder injury during a difficult hysterectomy or cesarean delivery may result in vesicovaginal fistula formation. Most vesicovaginal fistulas are cuased by dissection of the bladder during the mobilization of the bladder flap, which causes devascularization or an unrecognized tear of the posterior bladder wall. Alternatively, if the vaginal cuff suture was unknowingly incorporated into the bladder, this can result in tissue ischemia, necrosis, and subsequent fistula formation.
Epidemiology Frequency.
// 33 // The actual incidence of vesicovaginal fistula is unknown. However, the incidence of vesicovaginal fistula resulting from hysterectomy is estimated to be less than 1%. Approximately 10% of such fistulas may involve one or both ureters. Some fistulas may be more complex, involving adjacent organs. If the rectum is involved in the inflammatory reaction, rectovaginal fistula may develop.
Etiology In the United States, more than 50% of vesicovaginal and ureterovaginal fistulas occur after hysterectomy for benign diseases such as uterine fibroids, menstrual dysfunction, or uterine prolapsed. ......
In developing countries, obstetrical complications are the most common cause of vesicovaginal and ureterovaginal fistulas. This may develop in cases of longstanding and obstructed labor leading to pressure necrosis on the anterior vaginal wall. Fistulas in this setting may be large and have extensive local tissues damage and necrosis.
Problem A fistula is defined as a communication between 2 organ sites. Vesicovaginal fistula is a free communication between the urinary bladder and the vagina. The urine from the bladder freely flows into the vaginal vault, leading to total or continuous incotnence. Ureterovaginal fistula is a communication between the distal ureter and the vagina. The urine from the ureter bypasses the bladder and flows into the vagina. This also results in total or continuous incontinence.
History of the Procedure Descriptions of urinary fistulas have been well described as early as ancient times by Hippocrates and Rufus. In developed countries, the most common cause of vesicovaginal fistula is gynecologic surgery (eg. Hysterectomy). Obstetric trauma resulting in fistula formation is most common cause of urinary fistulas in underdeveloped countries."
29. From the bare perusal of the report of Dr. Anil Agrawal, it appears that Hysterectomy was performed by O.P.No.1 and due to operation, ureter of the complainant was injured and damaged and // 34 // during removal of uterus left ureter of the complainant was cut and thereafter Cystoscopy was performed.
30. The complainant had gone to Apollo Hospital, Bilaspur and contacted with Dr. Jayant Kanaskar, who is M.S. (Surgery) D.N.B. (Genito Urinary Surgery) M.N.A.M.S. Consultant Urologist and Andrologist and also contacted with Dr. Sadashive Bhole, who is M.S. (Surgery) M.Ch. (Urology) Mumbai, DNB (Genitourinary Surgery) MNAMS Delhi. Dr. Jayant Kanaskar mentioned in his report dated 31.07.2007 that this is stated that Mrs. Sangeeta Dubey, 40 years, Female is having left side reflux in ureter which requires Boariflap reconstruction. Total expenses in General ward for above mentioned surgery would cost Rs.60,000/- including medicines. The second Ureteroneocystostomy of the complainant was also performed on 08.11.2005 and further treatment was taken from Dr. Sadashive Bhole. According to the O.P.No.2 he is Master of Surgery (General Surgeon) and he was not having qualification of Urologist and he was not a Urologist and he is not Genitourinary Surgeon and he is simply a General Surgeon, therefore, the O.P.No.2 is not qualified for performing second operation Ureteroneocystostomy because he is simply a General Surgeon. He is not an expert for conducting second operation Ureteroneocystostomy and the such operation was conducted by him for which he is not qualified and he did not possess // 35 // proper qualification. So far as O.P.No.1 is concerned, she conducted Hysterectomy operation and due to said operation ureter was damaged. It appears the O.P.No.1 committed medical negligence.
31. Therefore, finding recorded by the District Forum at para 10 & 11 of the impugned order is well reason and learned District Forum has rightly come to the conclusion that O.P.No.1 & O.P.No.2 both have committed medical negligence, which comes within purview of deficiency in service, hence the District Forum, has rightly held liable to O.P.No.1 & 2 to pay compensation to the complainant.
32. Shri Shaukat Ali, learned counsel appearing for the complainant (appellant in Appeal No.FA/13/219) would submit that the complainant suffered severe mental agony, but learned District Forum has only awarded a sum of Rs.20,000/- towards compensation for mental agony which is on very lower side than the prayer made in the complaint. The complainant is entitled to get a sum of Rs.2,00,000/- towards compensation for mental agony.
33. The complainant prayed for granting a sum of Rs.2,00,000/- as compensation for mental agony, which is on higher side, but looking to the facts and circumstances of the case, we find that award of Rs.20,000/- under this head is on lower side and it is proper to award // 36 // a sum of Rs.75,000/- under this head instead of Rs.20,000/- as directed by the District Forum.
34. Therefore, the appeal No.FA/13/184 filed by O.P.No.2 Dr. V.K. Dixit and Appeal No.FA/13/213 filed by O.P.No.1 Dr. Smt. Sunita Verma, being devoid of any merits, deserve to be and are hereby dismissed.
35. So far as appeal No.FA/13/219 filed by the complainant, Smt. Sangeeta Dubey, is concerned, it is partly allowed and the amount of compensation for mental agony is modified and it is directed that instead of Rs.20,000/- the O.P.No.1 & O.P.No.2 will pay a sum of Rs.75,000/- to the complainant towards compensation for mental agony. The remaining parts of the impugned order will remain unaltered and are affirmed. No order as to the cost of these appeals.
(Justice R.S. Sharma) ( D.K. Poddar )
President Member
/04/2015 /04/2015