Dr. Pankaj K. Patel vs Ramilaben D. Patel & Ors

C. Viswanath, J

The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the "State Commission") in Appeal No. 864/2006 dated 13.06.2011.

According to the Complainant (Respondent No.1), Respondent No.2/Opposite Party No.1, a Health Visitor and her husband Bharatbhai Jarivala approached her in July-August 1994 and suggested abortion and family planning operation, as she had two months old pregnancy. On 11.08.1994, as per instructions of Respondent No.2, Complainant (Respondent No.1), her mother Bhikhiben and her husband Dineshbhai went to the hospital of the Petitioner. On the same day, about 3:00 p.m., the Petitioner gave an injection to Complainant (Respondent No.1) before taking her to the operation theatre. Thereafter, Petitioner gave 2 more injections to Complainant (Respondent No.1) and took her inside the operation theatre where her legs were tied. At the time of the operation, the Petitioner, members of his staff and Respondent No.2 were present. She did not lose consciousness and could see what was being done to her. Respondent No.2 firmly held her hand. Thereafter, the Petitioner operated in her private parts. After some time the Petitioner informed Complainant (Respondent No.1), that he had cleaned the uterus, but as there was a tumor in the uterus, major operation for removal of uterus had to be done. Thereafter, the Complainant (Respondent No.1) was taken outside in a stretcher to the ward and was laid on a mattress on the floor. Pain in the stomach started in the operation theatre and she was feeling uneasy and bled from her private parts. After the Complainant (Respondent No.1) was taken out of the operation theatre and brought to the ward, Petitioner and Respondent No. 2 did not give any treatment to her. Before she (Respondent No.1) was taken to the operation theatre, neither Respondent No.2 nor the Petitioner conducted any blood/urine examination. It was alleged that without any clinical examination or other tests, the Petitioner took her (Respondent No.1) to the operation theatre directly. He also did not care to find out whether she was actually pregnant or only had a tumor. The Petitioner caused hole in the uterus by inept use of instruments leading to bleeding and sepsis, ultimately leading to removal of her uterus. The operation (at Ashirwad Hospital) was necessitated because of the medical negligence of the Petitioner during the first surgery. She had to spend heavily on the operation, medicines and treatment etc. at Ashirwad Hospital. A Complaint was, thus, filed by Respondent No.1, alleging deficiency of service on the part of the Petitioner and Respondent No.2.

The Complaint was contested by the Petitioner wherein it was stated that on 11.08.1994 Respondent No.1 came to the hospital in the afternoon complaining of pain in lower abdomen. She was having irregular menstrual periods and missed periods for 2 months. Her general condition was weak and she had complaint of tachicardia. The lower abdomen was hard and in 'Grehyang' there was blood. Complainant (Respondent No.1) was not fit for performing family planning operation. It was, therefore, decided to admit her in the hospital for investigation. However, the Complainant (Respondent No.1) did not agree to the same and against the advice of the doctor left the hospital. Petitioner produced certificate of Dr. Ravindra Grasiya that no operation was performed at the hospital by the Petitioner. Petitioner as well as Dr. Ravindra Garasiya examined the Complainant (Respondent No.1) and both were of the opinion that she was not fit for family planning operation.

Respondent No.2 in her Written Statement stated that she had taken Complainant (Respondent No.1) to Archit Hospital on 11.08.1994 for Family Planning operation and abortion. Respondent No.2 contended that she had not collected any money from the Complainant (Respondent No.1). Respondent No.2 further contended that Complainant (Respondent No.1) was quite healthy and fit for the operation. Her condition was deteriorated after the surgery conducted by the Petitioner. Respondent No.2 was not responsible for the distress of the Complainant (Respondent No.1).

The District Forum, vide order dated 14.07.2006, partly allowed the Complaint on the ground that Petitioner was a qualified surgeon with several years of experience in surgery. He used instruments in the vagina of the Respondent No.1 in a manner that caused a hole in the uterus and she started bleeding. This was a clear case of medical negligence. Therefore, the Petitioner was directed to pay Rs.1,50,000/- to the Complainant (Respondent No.1) within 90 days from the date of receipt of the order, failing which interest @9% per annum would stand accruing on the amount, till payment.

Being aggrieved of the order passed by the District Forum, the Petitioner filed an Appeal before the State Commission. The State Commission, vide order dated 13.06.2011, dismissed the Appeal of the Petitioner and confirmed the order passed by the District Forum.

Being aggrieved by the order passed by the State Commission, the Petitioner filed the present Revision Petition before this Commission.

We have heard the Learned Counsel for the Petitioner as well as Respondents. They reiterated their respective contentions as stated above. We have also carefully gone through the evidence placed on record.

This Commission under Section 21(b) of the Consumer Protection Act, 1986 has limited jurisdiction. It is not required to re-assess or re-appreciate the evidence and reach to its own independent conclusion, Hon'ble Supreme Court in Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011(3) Scale 654 has held as under:

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power cane be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same sets of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora".

The District Forum stated in its order that due to the negligence of the Petitioner, a hole was caused in the uterus of Respondent No.1 and she started bleeding. A clear observation was made by the District Forum while passing the aforesaid order, based on the evidences led before it, which proved the case of the Complainant (Respondent No.1). The State Commission also confirmed the order of the District Forum and held that the Petitioner was responsible for the negligence caused to Respondent No.1.

In view of the concurrent finding given by both the Fora below, we find no reason to interfere with the order passed by the District Forum as well as State Commission as they have fully justified their respective orders with appropriate findings based on evidence led before them.

We see no illegality or infirmity in the impugned order. The Revision Petition has no merits, hence the same is dismissed.