National Consumer Disputes Redressal
Kumari Femy & Ors. vs Dr. Kavitha V.K & Ors. on 13 December, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER COMPLAINT NO.196 OF 2012 1. Kumari Femy, D/o Vinod, Kunnel House, Thidanad, P.O. Kottayam, Minor, represented by her next friend, Father Vinod Presently at 16, Frascati Hall, Sweetmans Avenue, Blackrock, Co Dublin, Ireland 2. Vinod, Kunnel House, Thidanad P.O. Kottayam, Kerala presently at 16, Frascati hall, Sweetmans Avenue, Balckrock, Co Dublin, Ireland 3. Bindu W/o Vinod, Kunnel House, Thidanad P.O. Kottayam, Kerala Presently at 16, Frascati hall, Sweetmans Avenue, Blackrock, Co Dublin, Ireland .Complainants Versus 1. Dr. Kavitha. V.K, Consultant Gynaecologist, Marian Medical Centre, Arunapuram, Pala, Kottayam District, Kerala Also at Vikas, 17, Neethinagar, Pattathanam, Kollam, Kerala 2. Dr. Sunny Mathew, Marian Medical Centre, Arunapuram Pala, Kottayam District, Kerala 3. Dr. Cyriac Thomas, Marian Medical Centre, Arunapuram, Pala, Kottayam District, Kerala 4. Marian Medical Centre, Arunapuram, Pala, Kottayam District, Kerala Represented by its Administrator in Charge, Sr. Bency. .........Opposite parties BEFORE HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Complainant : Mr. Jojo Jose & Mr. Sishir Pinaki, Advocates PRONOUNCED ON: 13.12.2012. ORDER
PER MR.VINAY KUMAR, MEMBER Consumer Complaint No.196 of 2012 has been filed by three complainants. Complainant No.1 is a minor child, represented by her father. Complainant Nos.2 and 3 are respectively the father and the mother of the child. The four opposite parties, against whom this complaint has been filed, are Marian Medical Centre, Kottayam, Kearla (OP-4) and three of its doctor.
2. Records produced by the Complainants show that before initiating the present proceedings, the Complainant No.1 had filed a separate complaint against OP-1 and OP-4 i.e. the consulting Gynaecologist of Marian Medical Centre and Medical Centre itself, before District Forum, Kottaym in CC No.113 of 2011. In the proceeding of 21.4.2012, the District Forum considering an interim application filed by the Complainant, had permitted her to withdraw the complaint with the following orders:-
Petitioner represented. Petitioner filed IA 254/12 for withdrawing the complaint. IA 254/12 allowed vide separate order. Petitioner is allowed to withdraw complaint with a liberty to file fresh petition before the proper fora having pecuniary jurisdiction. documents if any filed is to be retuned to the petitioner as per rules.
Thereafter, the present complaint has been filed on 18.7.2012.
3. The matter was taken up on 17.9.2012 and Mr. Jojo Jose, Advocate was heard on admission of the complaint. The complaint arises out of treatment of the mother of infant Femy (Complainant -1) by the OPs. She was admitted in Marian Medical Centre on 22.6.2009 and Complainant No.1 was born on 23.6.2009 and on 24.6.2009, she was discharged. It is alleged that in the course of the delivery per-vagina, the doctor pulled the head of the baby with excess force due to which brachial plexus of the child was injured. This resulted in paralysis of the right hand and injury to the right eye. It is also alleged that if the concerned doctor had performed this delivery through ceasarian section, the resultant problem to the child could have being avoided. Therefore, this consumer complaint has been filed, alleging gross negligence on the part of the doctors.
4. The Complainants have sought the following reliefs against the OPs jointly and severely.:-
(a) Rs., 25,07,00,000.00 (Rupees Twenty Five Crore and Seven Lakh only) as damages and future treatment expenses as entitled and claimed in Paragraphs No.110 to 123 of the Complaint with interest at the rate of 12% PA from the date of Complaint.
(b) Rs.1,00,00,000.00 (Rupees One Crore only) as interim damages for the expenses already incurred and future treatment expenses.
(c) further interest at the rate of 12% per annum till the date of actual payment.
(d) Rs. 25,000.00 (Rupees Twelve thousand only) as cost of the legal notice sent by Complainants through their Counsel to the Opposite Parties.
(e) Cost of this complaint.
(d) pass any order
(s) which this Honble Commission may deem fit in the interest of justice.
5. The fact that the Complainant had first invoked the jurisdiction of the District Forum, would show that their total claim, under all heads of relief, could not have exceeded the pecuniary limit of Rs.20 lakhs, laid down for the District Forum under Section 11 of the Consumer Protection Act, 1986. But, the Complaint petition does not explain the reasons for withdrawal of the complaint from the District Forum. Nor do the records contain a copy of the Interim Application, referred to in the order of the District Forum, in which withdrawal of the complaint was sought.
6. Learned counsel for the Complainant also failed to explain the reason why the jurisdiction of the District Forum was invoked in the first place, when, apparently the perception of the Complainant about the magnitude of the claim against the OPs was even more than Rs. 26 Crores ! In other words, what has happened in the period of four months, between withdrawal of the complaint from the District Forum on 21.4.2012 to filing of the present complaint on 18.7.2012, which can justify an exponential increase in the claim from say, Rs 20 lakhs to Rs 26 Crores.
7. The list of documents enclosed with the complaint petition includes a copy of the legal notice issued on 29.7.2009 to OP-1 and OP-4. The notice informs that after consultation with several hospitals, they have sought appointment for further treatment of the child at Christian Medical College, Hospital Vellore. Significantly, the notice also states that:-
In this circumstances doctor Kavitha as well as hospital authorities were liable to compensate my clients suffering by giving medical expenses and also compensation for the disability suffered to my clients child.
At present as medical expenses my client had spent Rs.81,246/- as per bill and about Rs.15,000/- as expenses. End of this week itself my client is willing to go to Christian Medical College hospital Velloor. So I humbly request you as an instalment for bearing medical expenses you my immediately pay Rs.1,00,000/- to my client before going to the Christian Medical College Hospital Velloor.
8. Thus, admittedly as on 29.7.2009, the medical expenses actually incurred were only Rs.81,246/-. Therefore, it needs to be understood how the actual and projected cost of treatment can balloon into a figure of Rs.25.07 crores, by the date of filing of this complaint i.e.18.7.2012.
9. Annexure P-22 contains the details of medical bills issued by different hospitals and drug stores for treatment of the child.
A perusal of the same reveals that effort has been made to inflate the same in different ways. Even a bill of food items consumed in a restaurant is included. Multiple copies of the same bill are enclosed in an obvious attempt to increase the volume. When confronted with these, learned counsel for the Complainant sought time. But, even on the next date of hearing, he had no explanation to offer.
10. Even in a case where the allegation of medical negligence is established to the satisfaction of the concerned consumer forum, the quantum of compensation, payable to the victim, would need to be determined on the basis of the nature of the injury or loss. It has to be commensurate with the loss or injury suffered. It cannot be arbitrary, imaginary or remote to the cause. The law on this subject is well enunciated.
11. Ratna Ghosh and Anr. Vs. Dr. P.K.Agarwal and Ors. (Civil Appeal No.6409 of 2010 decided on 6.8.2010 by H,ble Supreme Court of India) was a case where the substantive loss suffered by the complainant was to the tune of Rs.2,19,000/- only but compensation claimed was much larger and included exemplary damages of Rs.2 Crores. The National Commission held it to be a highly exaggerated claim, made only to bring the matter within the jurisdiction of the National Commission. The claim was therefore, not entertained, leaving the Complainant free to seek remedy before an appropriate forum. This view of the National Commission was upheld by the Honble Supreme Court, observing In our view, the National Commission did not commit any error by refusing to entertain the complaint because the appellants did not produce any tangible material for claiming exemplary damages of Rs.2 crores. This being the position, the National Commission rightly observed that the claim had been unreasonable inflated for bringing the complaint within its jurisdiction.
12. Similarly, in Sujata Nath Vs. Popular Nursing Home and others, (Civil Appeal NO.8642 of 2011 decided on 14.10.2011) the Complainant had made a total claim of Rs.150 lakhs against the Nursing Home and others. Out of this, Rs.45 lakhs was claimed towards future expenditure on HIV medication and a further sum of Rs.35 lakhs for future medical expenses relating to the progressive failure of the immune system. The basis how these figures were arrived at, was not explained. The National Commission observed that even if the Complainant is able to establish the claim of negligence and deficiency in service, as alleged, the compensation claimed or which can be awarded by a Consumer Forum for such negligence or deficiency has to be commensurate with the loss and injury suffered. It cannot be arbitrary, imaginary or for a remote cause. The National Commission therefore, ordered that the complaint be returned to the Complainant for presentation before an appropriate Forum, after making suitable amendment in the complaint in accordance with law.
This view of the National Commission was upheld by the Honble Supreme Court of India, observing that In the complaint filed by her, the appellant had claimed compensation of Rs.1,50,00,000/-, but despite an opportunity having been given by the National Commission, she could not, prima facie, show how she was entitled to rupees eighty lakhs towards future medical treatment and rupees fifty lakhs for mental agony and harassment allegedly caused by the respondents. Therefore, the National Commission did not commit any error by refusing to entertain the complaint and rightly returned the same for being filed before an appropriate forum.
13. Considering the material examined above, we have no hesitation in holding that the prayer made in the complaint petition is highly exaggerated and not borne out by the material placed on record. Therefore, the complaint petition is dismissed, reserving liberty to the complainant to seek remedy before an appropriate forum of competent jurisdiction. Towards that, the time spent in the present proceedings shall be excluded from determination of the period of limitation. We also deem it proper to clarify that nothing in this order shall be construed as an expression of opinion on the merit of the complaint.
.
(J. M. MALIK, J.) PRESIDING MEMBER .
(VINAY KUMAR) S./- MEMBER