State Consumer Disputes Redressal Commission
Smt.Shobha Sukhadeo Kochale, vs 1. Dr.Ravi Abhyankar on 14 July, 2015
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/01/119
Smt.Shobha Sukhadeo Kochale,
Mast.Amar Sukhadeo Khochale,
Mast.Akshay Sukhadeo Kochale,
Smt.Radhabai Ganapat Kochale,
Smt.Chingubai M. Kondalkar,
R/at : 100/7, Patange Chawl, Takiya Ward, Sarweshwar
Mandir Marg, Kurla, Mumbai 400 070.
...........Complainant(s)
Versus
1. Dr.Ravi Abhyankar
Manas
Hospital,
34, Shanti Niwas, Next to Canara Bank,
Opp.H.P.Petrol Pump,
Sion
Main Road, Mumbai 400 022.
2. New India Assurance Co.Ltd.
Shiv Kripa Commercial Complex, Gokhale Road, Naupada, Thane 400
602.
............Opp.Party(s)
BEFORE:
Shashikant A. Kulkarni, HONBLE PRESIDING MEMBER
Narendra Kawde, HONBLE MEMBER
For the Complainant:
Adv.Shirish Deshpande
For the Opp. Party:
Dr.Ravi Abhyankar-opponent no.1 in person.
Adv.Madhura Chitnis for the opponent no.2.
ORDER
Per Shri Shashikant A. Kulkarni, Presiding Judicial Member This is a complaint under Sec.12 r/w.17 of the Consumer Protection Act, 1986 [hereinafter to be referred to as CP Act].
[1] Complainants are the heirs of one Sukhadeo Khochale, who his age of 40 years on 27/03/1999 died.
He was working as Sepoy with Bombay Customs and only bread earner for the family. During and around October 1998, deceased became alcoholic. Complainant no.1, wife of the deceased requested his friends to take him to a doctor for proper treatment.
On 27/03/1999, the deceased consumed alcohol. Therefore, his friends, namely, Sanjay Jadhav, Dilip Khandekar and Suhas Virkar took him to opponent doctor.
Opponent no.1 is a M.D.(Psych.Med.) who runs Manas Nursing Home at Sion, Mumbai.
Opponent no.2 is Insurance Company with which opponent no.1 has drawn professional insurance and which was subsisting on 27/03/1999, the date of incident.
[2] At about 8.45 p.m. on 27/03/1999, deceased was taken in drunken condition to the opponent no.1 is nursing home. Friends of the deceased explained his condition. Thereafter, opponent no.1 gave some injection and prescribed some tablets and asked deceased friends to buy those medicines.
Opponent no.1 also prepared for giving shock to the deceased. Friends of the deceased allegedly told the opponent no.1 that earlier deceased was not given electric shock. They thereby expressed apprehension that anything would happen.
[3] At about 9.05 p.m., opponent no.1 went inside the room. After about 10 to 15 minutes, friends of deceased heard loud shouting of the deceased. At 9.30 p.m. the opponent informed the friends of deceased that after giving shock treatment deceased had become serious and died due to heart attack.
[4] Relatives and friends were called in the hospital. With dead body disposal warrant, the deceased was taken for post-mortem. Opponent admitted in writing the mistake committed by him. Complainants, therefore, alleged that electro-convulsive treatment [ECT] was dangerous to drunken person. No written consent was obtained from wife of the deceased before administering ECT to the deceased. Opponent no.1, therefore, committed deficiency in service. So also, opponent did not study the case history and made wrong diagnosis.
Complainant, thereafter, collected relevant opinion and sought the compensation of over Rs.16 lac on all counts including loss of income on account of death and mental agony etc. from opponents.
[5] In support of the complaint, complainants relied upon the copies of dead body disposal warrant, post-mortem, chemical analysis report, admission of mistake committed by the opponent no.1 in Marathi and English separately, police investigation papers, medical certificate of the deceased etc. Opponent no.1 by written version contested the claim but did not dispute the date and happening of incidence.
Opponent no.1 tried to submit that since 1979, he worked as professional and runs nursing home from 1989 having no complaint of such nature any time before. No negligence can be attributed on his part.
He also submitted that after explaining the position, ECT was administered to the patient bonafidely in the benefit of the patient after verbal consent of the friends was taken as emergency prevailed then. He also submitted it was informed to him that ECT was administered, to the deceased earlier also. Police, relatives and friends of the deceased obtained the statements from the opponent no.1 causing him to admit the mistake and guilt putting in the fear of instant injury. There was demand of Rs.7 lac from the relatives for avoiding adverse publicity.
It is also submitted that there cannot be conclusion from post-portem that death was merely because of outcome of ECG and administration of ECT was wrong. Therefore, opponent no.1 prayed to dismiss the complaint.
[6] Opponent no.1 has filed case papers and questionnaire of Dr.Dave.
[7] Opponent no.2 contested the complaint by filing separate written version on record. Opponent no.2 has submitted that there is no privity of contract between the complainant and opponent no.2. Therefore, there is no deficiency on the part of the opponent no.2 and prayed for dismissal of the complaint.
[8] Complainants submitted on record, with the permission of the Commission the interrogatories put to the opponent no.1 and expert for opponent no.1, Dr.Dave answered accordingly.
[9] Both the parties have submitted their respective brief notes of written arguments.
We have heard the learned counsel Mr.Shirish Deshpande for the complainant and Dr.Ravi Abhyankar, opponent no.1 in person.
Taking us through the record, pleadings, evidence, Adv.Deshpande categorically explained that there is no record to show that informed consent was obtained from the complainants nor there is proof that the deceased was not drunken or there is no expert evidence on record that administering ECT in the situation like this was to save life of patient and emergent situation has arisen.
[10] Dr.Ravi Abhyankar, opponent no.1 tried to explain the situation of 27/03/1999. He submitted that though he has given writing admitting mistake committed by him to relatives of complainants and before the Police in the early morning of 28/03/1999, an emergent action needed to be taken as the deceased became violent that the ECT is the safest way to treat violent disorder of patient.
[11] The case is based on the principle of res-ispa loquitur. Undisputed position which emerges from the record is that the friends took the deceased to the opponent no.1 when he was drunken. Post-mortem report shows contents of alcohol consumption vis--vis there is a conclusive report of Chemical Analyzer to prove that the blood 155 miligram of Ethyl alcohol per (100) mililitre. That means that the contents of alcohol in the blood was so high that no person can receive shock treatment as normal person can. There is no proof that patient was having psyco-phobia and that or excessive drunken person requires such shock.
[12] In this case, the deceased was drunken. It was too wrong on the part of the opponent no.1 to immediately administered ECT to the deceased.
[13] To a question in interrogatory, Dr.Dave as an expert, brought by the opponent no.1 as his witness accepts that he does not know details of the case, but in an emergency ECT is given without investigation. This answer actually supports complainants and half-hazardously bias to tent to support the opponent.
[14] Without proof of emergency, opponent no.1 cannot withstand the defence that he committed an action right, in benefit of the patient and bonifidely. On the other hand, there is a clear admission of his guilt and blunder committed by him proved on record. There was no emergency arisen, whereas half an hour was enough available to the opponent doctor to physically hold the patient requiring to bring him down to normalcy and thereafter to follow proper procedure obtaining giving informed consent to the relatives of the patient, particularly wife of the deceased. This is not done by the opponent doctor.
[15] Present case pertains to the year 2001. It was posted to the sine-die list. After it was taken out from the sine-die list, parties were noticed. The case is expedited. At no fault of the complainants, case remained pending whereas there is steep increase in the price rise also.
[16] Total compensation claimed then by the complainants comes to Rs.16 lacs to which complainants are really entitled in the given facts. For above discussed reasons, we are of the view that the complaint deserves to be allowed. Hence, we proceed to pass following ORDER
1. Consumer complaint is allowed with costs quantified to Rs.25,000/- [Rs.Twenty Five Thousand only] to be paid by the opponent no.1 to the complainant.
2. Opponent no.1 is directed to pay a sum of Rs.16 lac [Rs.Sixteen lac only] to the complainants with interest @9% p.a. from the date of filing of consumer complaint i.e.27/03/2001 within a period of two months from today, failing which the interest rate shall be chargeable @12% p.a. on the awarded amount.
3. One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
4. Copies of the order be furnished to the parties free of cost forthwith.
Pronounced Dated 14th July, 2015.
[ Shashikant A. Kulkarni] PRESIDING MEMBER [ Narendra Kawde] MEMBER pgg