State Consumer Disputes Redressal Commission
New India Assu.Co vs Deepa Maini & Another on 30 January, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 177 / 2009
The New India Assurance Co. Ltd.
Divisional Office, Ranipur More, Haridwar
Through Divisional Manager
The New India Assurance Co. Ltd.
8/6-7, Astley Hall, Dehradun
......Appellant / Opposite Party No. 2
Versus
1. Smt. Deepa Maini W/o Sh. Kunal Maini
R/o 33, Bilavkeshwar Colony, Haridwar
.......Respondent No. 1 / Complainant
2. Smt. (Dr.) Daizy Sondhi W/o Dr. S.K. Sondhi
R/o Sondhi Nursing Home, Arya Nagar, Jwalapur, Haridwar
.......Respondent No. 2 / Opposite Party No. 1
Sh. M.K. Kohli, Learned Counsel for the Appellant
None for Respondent No. 1
Sh. Praveen Kumar, Learned Counsel for Respondent No. 2
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 30/01/2017
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellant-Insurance Company against the order dated 21.08.2009 passed by the Members of the District Forum, Haridwar in consumer complaint No. 81 of 2008, whereby the Members of the District Forum has allowed the consumer complaint and directed the opposite party No.2-Insurance Company to pay Rs. 12,00,000/- together with Rs. 1,500/- as litigation charges to the complainant within one month from the date of order. On the same date, another judgment has been 2 passed by the President of the District Forum, Haridwar thereby dismissed the consumer complaint.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint are the complainant was in the treatment of opposite party No. 1- Dr. Daizy Sondhi since her pregnancy. She was admitted in the nursing home of the opposite party No. 1 on 18.03.2007 and gave birth to baby boy at 11:06hrs. in the day through normal delivery. At the time of delivery of child, one toe/finger of child was blue in colour, for which the complainant and her husband informed the opposite party No. 1 to take immediate action regarding treatment of child, but the opposite party No. 1 told that it was a normal delivery, therefore, no need to worry and toe of child became normal after sometime. When the colour of toe of child deepens, then the opposite party No. 1 referred the child to higher institute and expert on 18.03.2007 at 3:40P.M. The family members of the complainant brought the child at Jolly Grant Hospital, Dehradun after arrangement of an Ambulance from City Hospital, Haridwar with oxygen and after payment of fees. The child was admitted in the emergency at Jolly Grant Hospital. Doctors of Jolly Grant Hospital told the family members of the complainant that new born child was suffering from disease, due to negligence of doctors at the time of delivery of child. It appears that some contaminated and impure water went into body of the child and it was required to place the child with oxygen, but due to the negligence of the doctors at the time of delivery brain cells of child were damaged due to lack of oxygen. Doctors of Jolly Grant Hospital diagnosed the disease named Cerebral Palsy and child will suffer by this disease for whole life. The complainant went to All India Institute of Medical Science (AIIMS), New Delhi and Apollo Hospital, New Delhi alongwith her new born child, where doctors told that it will take Rs. 11-12lacs as expenditure in the treatment of child and also told that even after expenditure of this huge amount, it will be possible that the child will remain on wheelchair. The complainant spent Rs. 1.50lacs at Jolly Grant Hospital and later on she took 3 treatment of child from Dr. Saraswat and Dr. Luthra at Haridwar and spent about an amount of Rs. 6.00lacs. The complainant's child suffered with this serious disease due to the negligence of the opposite party No. 1 at the time of delivery, for which complainant and her family members and the child will suffer for whole life. The complainant has already spent Rs. 7.50lacs on the treatment of her child and it will take Rs. 12 lacs more for further treatment, for which opposite party No. 1 is responsible. The opposite party No. 1 is insured from opposite party No. 2-The New India Assurance Co. Ltd. for a period from 29.10.2007 to 28.10.2008. The complainant has prayed for a sum of Rs. 18.50lacs alongwith Rs. 1.50lacs as compensation and litigation charges.
3. The opposite party No. 1-Dr. Daizy Sondhi has filed written statement before the District Forum and has pleaded that it is admitted to the answering opposite party that the complainant delivered a child at her nursing home on 18.03.2007 through normal delivery. Except delivery charges, answering opposite party never charged any other amount for her services. There is no deficiency in service on the part of answering opposite party. There is no carelessness or negligence on the part of the answering opposite party as well as her staff. It is denied that one toe of the complainant's child was blue in colour at the time of delivery and for that complainant or her husband informed the answering opposite party. Actual fact is that the answering opposite party is a qualified and experienced doctor, who has been working as Gynaecologist for last 21 years. About 60-70 deliveries are conducted by the answering opposite party per month in her nursing home. She works for delivery cases on the basis of medical literature and international standards in the interest of patient mother and child. It was a normal delivery. Child wept just after delivery, which means both mother and child were healthy at the time of delivery. After delivery of the child, both mother and child were shifted to private room and child was fed milk with spoon. Actual fact is that after 2- 3 hours of delivery, staff of nursing home of answering opposite party saw 4 that both feet of the child became bluish in colour and they informed the answering opposite party and also Dr. S.K. Sondhi was informed, who is a Pediatrician, who started treatment of child. The child was kept in NICU and oxygen was provided and medicines were given. There was no relation of colour of feet of child with the delivery, because colour started change after 2-3 hours of delivery. Only after delivery abnormalities like hole in heart, contraction of nerves in the brain, cut of lip or joint of fingers etc. can come in the knowledge of the doctors. Even after treatment given to the child by Dr. S.K. Sondhi in NICU, child did not recover, therefore, the answering opposite party advised the complainant and her family members and referred the child to higher center. The answering opposite party herself arranged one Ambulance and one doctor and family members of the complainant took the child to Jolly Grant Hospital, Dehradun for further treatment on 18.03.2007. The complainant remained for 2 days in the nursing home of the answering opposite party. But she never complained to the answering opposite party. It is wrong to say that the new born child suffered with any disease due to the carelessness and the negligence of the answering opposite party. It is also wrong to say that the disease Cerebral Palsy was caused due to any negligence of the answering opposite party. The actual fact is that this disease may be caused due to certain reasons like genetic and metabolic etc. There is no responsibility of answering opposite party regarding expenditure of treatment at AIIMS, New Delhi or Apollo Hospital, New Delhi. The answering opposite party replied the legal notice of the complainant through her advocate Sh. Shrigopal Narson on 27.02.2008. The answering opposite party has been insured from the insurance company-The New India Assurance Co. Ltd. for the period from 29.10.2007 to 28.10.2008, therefore, if any liability is fastened on the answering opposite party, then the insurance company shall be liable to pay the amount. There is no deficiency in service on the part of the answering opposite party, therefore, it cannot be said that the complainant suffered financial and physical loss and mental agony due to any act of the answering opposite party.
54. The opposite party No. 2-The New India Assurance Co. Ltd. has filed written statement before the District Forum and denied all the allegations made in the consumer complaint. In additional please, the answering opposite party has pleaded that the complainant is not the consumer of the answering opposite party. There is no dispute between the complainant and the answering opposite party. The dispute is only between the complainant and the opposite party No. 1, therefore, in that case if Forum decides the matter and fasten liability on opposite party No. 1, then the opposite party No. 1 shall pay the amount to the complainant and thereafter the opposite party No. 1 may apply to indemnify for the amount insured.
5. The Members of District Forum, Haridwar, on an appreciation of the material on record, have allowed the consumer complaint vide order dated 21.08.2009 in the above manner. On the same date, President of the District Forum has also passed judgment and dismissed the consumer complaint. Aggrieved by the order passed by the Members of the District Forum, the opposite party No. 2-Insurance Company has filed the present appeal.
6. We have heard Sh. M.K. Kohli, learned counsel for the appellant and Sh. Praveen Kumar, learned counsel for respondent No. 2. None appeared on behalf of respondent No. 1. We have also gone through the entire record and have also perused the material placed on record.
7. There is no dispute with regard to the fact that the respondent No. 1- complainant was admitted for delivery at the nursing home of respondent No. 2-opposite party No. 1 and respondent No. 1 delivered a male child. This Commission has to see whether there was any medical negligence on the part of respondent No. 2 or not and whether the President of the District Forum has passed a reasoned order, properly appreciating the facts and circumstances of the case and has rightly found that no medical negligence was made by the respondent No.2 and has rightly dismissed the consumer 6 complaint. It is also to be seen whether medical negligence was proved by the respondent No. 1-complainant through any expert evidence or not?
8. Learned counsel for the appellant has submitted before this Commission that the order of the Fora below is against the facts, law and merit of the case. The District Forum has not considered the written statement filed by the appellant and also not considered the written statement filed by respondent No. 2-oppsoite party No. 1. The District Forum has not considered that respondent No. 1 was not a consumer of the appellant. The District Forum has wrongly held that there was medical negligence on the part of the respondent No. 2. President of the District Forum has passed a reasoned order properly appreciating the facts and circumstances of the present case and has rightly found that no medical negligence was caused by the respondent No. 2 and has rightly dismissed the consumer complaint. The District Forum has not considered that no evidence was filed by the respondent No. 1-complainant to prove medical negligence on the part of respondent No. 2. Only averments in the complaint as well as in the affidavit is not enough to prove the said allegations. The District Forum has committed material irregularity and illegality while allowing the consumer complaint and passing the impugned order.
9. Respondent No. 1-complainant has filed copy of referral letter dated 18.03.2007, copy of birth certificate and copy of legal notice dated 31.01.2008 (paper Nos. 5/2 to 5/5 on the District Forum's record). Respondent No. 1 has also filed an affidavit in evidence (paper No. 26/1 on the District Forum's record) and vide list (paper No. 27/1 on the District Forum' record) respondent No. 1 has also filed medical certificate of Dr. Mahesh Kuriyal dated 06.05.2008 alongwith slip of Dr. Mahesh Kuriyal (paper nos. 27/2 to 27/3 on the District Forum's record), original birth certificate (paper No. 27/4 on the District Forum's record), copy of report of EEG of Doon Neuro Care Centre (paper No. 27/5 on the District 7 Forum's record) with analysis, OPD card dated 09.01.2008 of AIIMS (paper No. 27/6 on the District Forum's record) and OPD card of Indraprastha Apollo Hospital, New Delhi (paper No. 27/7 on the District Forum's record) and several cash memos/bills/invoices of Himalayan Institute Hospital Trust, Swami Ram Nagar, Doiwala, Dehradun regarding purchase of medicines etc. (paper Nos. 27/8 to 27/37 on the District Forum's record). On the other side, respondent No. 2-Dr. Daizy Sondhi has filed an affidavit (paper Nos. 29/1 to 29/4 on the District Forum's record) and appellant-insurance company has filed copy of insurance policy (paper Nos. 25/3 to 25/14 on the District Forum's record). Respondent No. 1 has also filed written arguments (paper Nos. 37/1 to 37/5 on the District Forum's record).
10. It is admitted to the parties that the Smt. Deepa Maini-respondent No. 1-complainant was under treatment of respondent No. 2-Dr. Daizy Sondhi since her pregnancy. In para No. 2 of the consumer complaint, respondent No. 1-complainant has mentioned that on 18.03.2007 at 11:06hrs., respondent No. 1 delivered a baby boy through normal delivery in the respondent No.2's nursing home and just after delivery, she observed that toe of child was blue, for which she informed the doctor-respondent No. 2, but the doctor has told that as the delivery of the child was normal and toe of child shall be normal after sometime. At 3:40p.m. on 18.03.2007 new born was referred to higher institute and expert by respondent No. 2. In the written statement, the respondent No. 2 has stated that toe of child was not blue in colour just after delivery, rather as it was a normal delivery, child wept just after delivery, which means both mother and child were healthy at the time of delivery. In the written statement, respondent No. 2 has stated that actual fact is that after 2-3 hours of delivery, staff of nursing home saw that both feet of child became bluish in colour, for which Dr. S.K. Sondhi, child specialist Pediatrician, was informed, who started treatment of child. The child was kept under NICU and oxygen was provided and temperature and medicines were given. In 8 the written statement, Dr. Daizy Sondhi-respondent No. 2 has also stated that there is no relation of colour of feet of child with the delivery, because colour started change after 2-3 hours of delivery. In para No. 3 of the consumer complaint, it is stated that when the new born was brought to Jolly Grant Hospital, Dehradun, doctors of that hospital told that change of colour of feet of new born was due to negligence of Gynaecologist, who conducted delivery of the respondent No. 1 and at the time of delivery, some contaminated/impure water went into the body of the child, resulting lack of oxygen and damage of brain cells. This disease is called Cerebral Palsy. We have gone through the evidence filed by the respondent No. 1 on the District Forum's record. Admittedly, new born was referred by the doctor-respondent No. 2 to Jolly Grant Hospital, Dehradun on 18.03.2007 at 3:40p.m. (paper No. 5/2 on the District Forum's record) filed by the respondent No. 1 herself. This proves that the respondent No. 2 and her husband, Dr. S.K. Sondhi, treated the new born child in NICU with oxygen, temperature and medicines, but when the colour of the feet of child did not disappear and condition of the new born deteriorate, then respondent No. 2 herself arranged ambulance and one doctor and referred the new born to Jolly Grant Hospital, Dehradun. Undoubtedly, the new born child was admitted in the Jolly Grant Hospital, Dehradun and was treated by the doctors in this hospital, as it is evident from several invoiced/bills and cash memos for purchase of medicines etc. It is very strange that the respondent No. 1 neither filed any piece of document regarding admission at Jolly Grant Hospital, Dehradun, nor any document regarding discharge of child from this hospital. There is no evidence on record to show whether any expert doctor of Jolly Grant Hospital, Dehradun or any doctor of AIIMS, New Delhi or Indraprastha Apollo Hospital, New Delhi suggested that the disease Cerebral Palsy or any abnormality in the body of child was caused due to any carelessness of the doctor, who conducted delivery of the complainant. There is no evidence on record to show that the disease Cerebral Palsy may be caused to new born due to inhale of contaminated fluid or impure water went into the 9 body of the child at the time of delivery. The respondent No. 1 has not filed or placed before this Commission any medical literature to prove that the contaminated or impure water inhaled by the child from the uterus of mother at the time of delivery or due to such inhalation into the body, the new born suffered with serious disease like Cerebral Palsy. There is no pleading in the consumer complaint that the delivery of child was not normal or it was caesarean delivery by using Forceps and due to using Forceps at the time of delivery, tissues and nerves of brain of new born child were suppressed or due to inhalation of impure or bad contaminated fluid into the body of the child Birth Asphyxia was caused, resulting change of colour of body and also caused a serious disease like Cerebral Palsy. Respondent No. 1 has filed a certificate dated 06.05.2008 of Dr. Mahesh Kuriyal of CMI Hospital, Dehradun (paper No. 27/2 on the District Forum's record). This certificate has been issued after 10 months of delivery of child and the doctor has diagnosed that the child Adwait was suffered from Cerebral Palsy, but he himself cannot sit, walk or speak. There is no expert evidence or advice of Dr. Mahesh Kuriyal in this certificate that this disease of child was a result of any carelessness or negligence of the doctor, who conducted delivery of the respondent No. 1. The Members of the Forum below have erred in giving findings like it was a Forcep delivery or the child caused disease due to Birth Asphyxia, as there was no pleading of respondent No. 1 that the delivery was not normal or it was caesarean or delivery was done with the help of Forceps.
11. Learned counsel for the appellant-Insurance Company has placed reliance on the following citations:-
a. Badri Prasad Rai vs. Dr. M.L. Peshin; 2003 (3)
CPR 119; Uttaranchal State Commission,
Dehradun
b. Uday Kant Jha vs. Moolchand Khairaiti Ram
Hospital; [2003] 4 CLD 922 (SCDRC - Delhi)
c. Indira Kartha & Others vs. Mathew Samuel
Kalarickal & another; 2002 CCC 784 (NS)
10
d. Smt. Vimlesh Dixit vs. Dr. R.K. Singhal; 2004
(1) UC 187.
e. Smt. P. Venkatalakshmi vs. Dr. Y. Savitha Devi
& Ors.; III (2001) CPJ 402
Learned counsel for respondent No. 2 has also placed reliance on the citations mentioned above.
12. In the case of Badri Prasad Rai (supra), this State Commission has held that opinion of doctors may vary from doctor to doctor and wrong diagnosis in itself was no ground to hold doctor negligent. In the case of Uday Kant Jha (supra), the State Commission, New Delhi has held that merely because a medical procedure fails, it cannot be stated that medical practitioner did not act with sufficient care and skill. In the case of Indira Kartha & others (supra), the State Commission, New Delhi has observed that burden of proving negligence in the case of medical negligence rests with the complainant. In the case of Smt. Vimlesh Dixit (supra), this State Commission has held that failure of operation is not negligence. Unless it is proved by reliable evidence and supported by expert evidence. It is itself not make out a case of negligence. In the case of Smt. P. Venkatalakshmi (supra), the Andhra Pradesh State Commission, Hyderabad has held that negligence cannot be assumed if something went wrong with the patient. There must be direct connection between injury suffered and the treatment given. All these citations are applicable in the instant case.
13. In the judgment of Vasant Mehta vs. Dr. Kullin J. Kothari Medical, Bombay; 2007 (1) CPR 338 (NC)., the Hon'ble National Commission has held it is well settled law of medical negligence that the complainant must prove by evidence or through any expert evidence or through medical literature that the doctor concerned was not qualified or was not competent to handle the case and also what he did or what he had, should not have been done resulting in any injury to the patient. No such 11 evidence has been led. The basic principle relating to medical negligence, which is known as BOLAM Rule are observed that heavy onus lies upon the complainants to prove medical negligence which can be discharged by cogent evidence. Mere averment in the complaint which is denied by other side, is no evidence by which complainant's case can be proved.
14. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC), has clearly observed in sub-para (3) of para 49 that, "a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.
15. Respondent No. 2-Dr. Daizy Sondhi is M.D., (Obst. & Gyn.) Gynaecologist and Obstetrician and her husband Dr. S.K. Sondhi is D.C.H., M.D. (Paed.) Child Specialist & Neonatologist, as is evidence from the letter head (paper No. 5/2 on the District Forum's record) filed by the respondent No. 1 on the record. Both the doctors have possessed higher degrees and they are specialist in their field. Dr. Daizy Sondhi and her husband gave better treatment in their nursing home by keeping new born child in NICU and when no recovery was shown in the condition of new born child, then bonafidely they referred the new born child by arranging ambulance and a doctor to Jolly Grant Hospital, Dehradun. There was no need to prepare bad head ticket of new born child, as child was referred to higher center for better management just within four hours of delivery. From the perusal of the evidence filed by the parties on the District Forum's record, we are of the view that both the doctors, Dr. Daizy Sondhi & Dr. S.K. Sondhi, were not careless or negligent in delivery of the respondent No. 1-complainant as well as care of new born child. Respondent No. 1 has failed to prove by cogent evidence that any medical negligence was done by respondent No. 2. Consequently, the appellant-
12Insurance Company cannot be held liable for any payment to the respondent No. 1.
16. Thus, we are of the view that the Members of the District Forum have not considered the facts and circumstances of the case and have passed a wrong judgment based on assumption. On the other side, the President of the District Forum has properly considered the facts and circumstances of the case and has passed a reasoned order. The impugned judgment and order passed by the Members of the District Forum allowing the consumer complaint cannot legally be sustained and is liable to be set aside and the consumer complaint filed by the complainant-respondent No. 1 is liable to be dismissed. Consequently, the appeal is fit to be allowed.
17. For the reasons aforesaid, the appeal is allowed. Impugned judgment and order dated 21.08.2009 passed by the Members of the District Forum, Haridwar is set aside and the consumer complaint No. 81 of 2008 is dismissed. No order as to costs. Amount deposited by the appellant be released in appellant's favour.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA)