National Consumer Disputes Redressal
Shilaben Ashwin Kumar Rana vs Dr. Bhavin K. Shah & Anr. on 12 May, 2014
NATIONAL CONSUMER DISPUTES REDRESSALCOMMISSION NEW DELHI REVISION PETITION NO. 2938 OF 2012 (Against order dated 21.02.2011 in First Appeal No. 242 of 2011 and 923 of 2011 of the State Consumer Disputes Redressal Commission, Gujarat) Shilaben Ashwin Kumar Rana R/o A/37, Vrundavan Society, Balasinor, Gujarat Petitioner Versus 1. Dr. Bhavin K. Shah Aneri Banglow-11, Gate No.-2, Opp. Drive in Cienema, Near Vaibhav Laxmi Temple, Thaltej Takra, Ahmedabad, Gujarat 2. Dr. Rajesh Agrawal, Gayatri Nagar Society, B/H, Sansthan School, District-Kheda , At Dakor, Gujarat Respondents BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Mr. Pawan Kumar Ray, Advocate For the Respondents : Mr. Sumeet Bhatia, Advocate PRONOUNCED ON 12th May, 2014 ORDER
PER DR. S.M. KANTIKAR, MEMBER
1. The present Revision Petition has been filed under Section 21 (b) of the Consumer Protection Act, 1986 against the impugned order dated 21.02.2011 passed by the State Consumer Disputes Redressal Commission (in short, State Commission) in First Appeal No. 242/2011 and Appeal No. 923/2011, wherein the State Commission dismissed both the appeals and upheld the order of the District Consumer Disputes Redressal Forum, (in short, District Forum). The District Forum partly allowed the complaint no. CC/130/2009 on 31.01.2011.
2. Both the Foras below held both the OPs, Dr. Bhavin K. Shah and Dr. Rajesh Agrawal liable. The District Forum, Nadiad partly allowed the complaint no. CC/130/2009 and directed the OPs to pay Rs.5,00,000/- to the Complainant, with the interest of 9% p.a., from the date of complaint, till realization and Rs.25,000/- towards mental agony and the expenses.
3. Subsequently, both the OPs, i.e. OP-1 Dr. Bhavik K. Shah filed FA 923/2011 and OP-2 Dr. Rajesh Agrawal filed FA 242/2011 before the State Commission, Ahmedabad. Both the appeals were dismissed, and State Commission has passed the modified order holding that, The OPs shall pay Rs.5,00,000/- and Rs.10,000/- as costs to be paid to complainant, jointly and severally.
4. Aggrieved by the impugned order, the complainant filed this revision for enhancement of the compensation.
5. We have heard the counsel for both the parties. There was a delay of 76 days in filing this revision petition. The counsel for complainant explained it, to our satisfaction, accordingly, the application for condonation of delay is allowed. The counsel for the complainant submitted that, the complainant succeeded in proving the medical negligence on the part of OPs. The child suffered a lot, and its condition is in vegetative form due to gross negligence by the OP doctors. The compensation grated by fora below is very meager, hence argued that; this case deserves higher compensation for the childs future life. The Counsel for the OP argued that, the award is justified and proper one. The OPs are ready to honour it, hence OP denied for the enhanced payment. He also submitted that, OPs have paid total Rs.1,30,000/-(Rs.80,000/- by OP-1 and Rs.50,000/- by OP-2) to the Complainant, on humanitarian ground.
6. This is a proved case of medical negligence. To ascertain the gravity of medical negligence, we have perused the evidence on file and find that it is an unfortunate medical mishap. On 25.12.2008, the OP-1, Dr. Bhavik Shah, a Surgeon with OP-2 Dr. Rajesh Agrawal, Anesthetist, performed Circumcision operation of the complainants child, Neel, aged about 2 years. Post operatively, the child did not regain consciousness, who was taken to OT and thereafter shifted by car to SAL Hospital for emergency treatment in P.I.C.U. Later, child was shifted to Sterling Hospital, on 27.12.2008., who was retained there for 2 months 6 days and discharged on 6.3.2009.Therefter, till date, the child has not recovered completely and is still in vegetative form.
7. Considering the sequence of the events in this case, it is gross negligence, due to which a child of 2 years has to survive in vegetative form, throughout his lifespan. We have given thoughtful consideration to this case, as to whether the complainant deserves the enhancement of compensation? As per the submissions of counsel for the complainant, the child is at present 7 years old, and is still in vegetative form. We have perused several recent photographs of child produced by the Counsel for the complainant, which clearly show the precarious condition of Neel. To award enhanced compensation, we wish to refer the authority Nagappa vs. Gurudayal Singh [AIR 2003 SC 674] the Honble Supreme Court held that, Firstly, under the provisions of Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is- it should be Just compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence.
8. Therefore, we apply the aforesaid principle. Thus, considering the tender age of Master Neel, who will remain in vegetative form throughout his life span, we are not sure whether there will be any improvement in his health condition in future or how much time will it take? The parents of Neel have to suffer lifelong, mental agony, due to negligence of the two doctors. Therefore, the Complainant certainly deserves for enhanced compensation.
9. We believe that the victims of medical negligence deserve support and compensation for the pain and suffering theyve experienced, and to cover the costs of future treatment or medical care. Due to medical negligence, the complainant can recover the non-economic towards damages compensation for physical pain, emotional pain and suffering. When the patients have been genuinely harmed, they have every right to seek redressal against blatantly careless or incompetent medicos, who should be punished.
10. Consequently, it is also important to note that, except recent photographs of Neel, the counsel for the complainant did not produce any medical assessment certificate from reputed or Government Medical institute about the present health status of Master Neel. Therefore, we are of considered view, to award just and proper compensation to the complainant. We place more reliance upon the recent landmark judgment of Honble Supreme Court in Anuradha Sahas Case, Civil Appeal No.2867 of 2012, which has dealt with award of compensation in the case of medical negligence. It was the highest award for medical negligence in our country. We have further relied upon several other judgments of the Honble Supreme Court namely Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia, AIR 1998 SC 1801, Charan Singh Vs. Healing Touch Hospital, 2000(2) CPC 508 SC & Ors, Nizam Institute Vs. Prasant Dhananka, 2009(2) CPC 402 SC.
11. Hence, we do not agree with the State Commission which modified the order of District Forum and reduced the quantum of an award to the complainant. Keeping in mind, about the future of Master Neels welfare, the enhanced compensation in this case is justified. We found no justification of reduction made by the State Commission from the award of compensation from District Forum. Accordingly we set aside the order passed by the State Commission and partly allow this revision petition, with following order:
The OPs are directed to pay a sum of Rs.10,000,00/- with interest @ 6% pa from the date of filing the complaint, along with Rs.30,000/- towards cost of litigation within 90 days from the date of receipt of this order, otherwise it will carry interest @ 9% pa till its realization to the complainant, jointly and severally. Out of this awarded amount, Rs.5,00,000/- be paid to the complainant and remaining amount be kept in Fixed Deposit (FDR) of State Bank of India (SBI), which will be utilized for Neels welfare and he will be able to withdraw it, after attaining the age of majority.
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(J. M. MALIK, J.) PRESIDING MEMBER ...
(DR. S. M. KANTIKAR) MEMBER Mss/5