Dr. Rajesh Chander & 2 Ors vs Karamdden Khan & 2 Ors

This revision petition has been filed by the petitioner Dr. Rajesh Chander & anr. against the order dated 23.5.2013 of the State Consumer Disputes Redressal Commission, Punjab, (in short 'the State Commission') passed in FA No.1368 of 2011.

Brief facts of the case are that Sh. Karamdeen Khan, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), making the averments that he is a labourer and used to earn Rs.350/- per day by doing the labour. On 26.08.2010 at about 4.00 p.m., respondent no.1 met with an accident with the tractor and his right leg was fractured in the accident at village Cheema. He was brought to Civil Hospital, Barnala and was treated by appellant no.1. A sum of Rs.25/- was deposited by respondent no.1 at the time of admission, Rs.2/- for OPD slip and Rs.300/- for one bottle of blood. Appellant no.1 stitched the wound which was 5x4 cm size and also told that there is fracture of lower end of right femur bone. No other treatment was given nor any x-ray was done. Only the skin traction was given. Respondent no.1 did not feel well and there was severe pain in the said part of the body. Respondent no.1 told appellant no.1 time and again about the condition of the pain, but every time, appellant no.1 told that he will be fine soon with his treatment by the next morning. On 27.08.2010 in the morning, respondent no.1 noticed some dis-colouring in the lower part of his right leg and felt some decrease in sensation in the said part. Respondent no.1 explained the whole condition to appellant no.1 and appellant no.1 gave some treatment. Not satisfied with the attitude of appellant no.1, respondent no.1 complained to appellant no.3 and respondent no.2, but they again referred him to appellant no.1 and also advised for x-ray of respondent no.1, but the appellant no.1 instead of doing something for the betterment, started misbehaving with respondent no.1 on First Appeal No.1368 of 2011 3the ground that he has complained to his seniors and just marked the x-ray on the file, but no x-ray was actually got done of respondent no.1. Appellant no.1 kept on misbehaving and told respondent no.1 to go to somewhere else, as he has complained against him. Respondent no.1 requested to discharge him from the hospital so that he may approach some other doctor, but appellant no.1 neither discharged him nor gave proper treatment to respondent no.1. The condition of respondent no.1 deteriorated due to negligence of the appellants and respondent no.2, as the pain in the thigh was increasing along with increase in dis-colouring of the leg below knee. Seeing his condition, the wife of respondent no.1 and other relatives took him to C.M.C. & Hospital, Ludhiana for further treatment in the evening of 27.08.2010. On checking, the doctors of the C.M.C. & Hospital told respondent no.1 that there is an open fracture femur right with vascular injury in the right leg and advised the amputation of right lower limb above the knee of respondent no.1 and warned that otherwise, there will be danger to his life. It was also told that had the proper treatment been given to him in time, the leg could have been saved. It was also told that no treatment was given by appellant no.1 to avoid or manage the vascular injury in the right thigh due to which the amputation was imminent. Appellant no.1 did not diagnose the disease properly, nor followed the proper surgical procedure. On 30.08.2010, the amputation was done and respondent no.1 remained admitted from 27.08.2010 to 22.09.2010 in C.M.C. & Hospital, Ludhiana and spent Rs.3.00 lacs on the treatment.

Aggrieved, the complainant filed a consumer Complaint bearing No.49/2011 before the District Consumer Disputes Redressal Forum, Barnala, (in short 'the District Forum'). The complaint was resisted by all the opposite parties. The District Form however vide, its order dated 8.8.2011 allowed the complaint and passed the following order:-

"In view of our above discussion, we allow the complaint and holds, that O.P-1, 3 & 4, have committed deficiency in service though there is no specific evidence against the O.P-2. Accordingly we order the O.P 1, 3 & 4 to pay consolidated amount of compensation to tune of Rs.10,00,000/- to the CC. We further order the O.P-4 to initiate a departmental inquiry against the O.P 1 & 3 who adopted a callous attitude towards the poor patient like CC and recover the amount of Rs.10,00,000/- from O.P 1 & 3, from their salary. However, the O.P. No.1 & 3 are at liberty to recover this amount from O.P.-5, if they desires so.

This order of ours shall be complied within 30 days of its communication. Copy of this order be supplied to the parties free of cost. The file after its due completion be consigned to the record room."

Aggrieved by the order of the District Forum, opposite party Nos.1 and 3 preferred appeal No.1368 of 2011 before the State Commission and similarly the respondent No.4, State of Punjab preferred appeal No.1369 of 2011 before the State Commission. The State Commission decided both the appeals by a common order dated 23.05.2013, wherein the amount of compensation of Rs.10,00,000/- as granted by the District Forum was reduced to Rs.5,00,000/- and this amount is to be paid only by opposite party Nos.1 and opposite party No.5. The appeal of the State of Punjab was also accepted.

Hence the present revision petition.

Heard the learned counsel for the parties and perused the record. The learned counsel for the petitioners stated that the patient was admitted in the Civil Hospital on 26.08.2010 at about 5:00 pm. and initial treatment was given by petitioner No.1/opposite party No.1. On 27.08.2010 the complainant left the hospital without informing the doctor or the staff of the hospital. It was argued by the learned counsel that the treatment given in such a short time cannot bring any harm to the complainant. In fact, the damage to the patient would have occurred due to transportation of the patient from the civil hospital, Barnala to CMC & Hospital, Ludhiana and for this damage only the complainant and his family members are responsible. Thus, clearly there is no negligence on the part of the petitioner No.1. Learned counsel further stated that in the cross examination Dr. Varun Singh of CMC & Hospital, Ludhiana has agreed that no referral slip was brought by the patient. It is clearly seen that the patient had unauthorisedly left the earlier hospital. It has been argued that no doctor has given opinion that the treatment given by the opposite party No.1 was wrong. It was stated that there was inquiry done by Board of Doctors and it was concluded that the brother of the patient was not serious and he took the patient without informing anybody in the Civil Hospital, Barnala. In this inquiry report, no adverse finding has been given against petitioner No.1/opposite party No.1 in respect of his treatment. The inquiry report also mentions the fact that the patient took away all the medical record of the civil hospital along with him.

Learned counsel for the petitioners stated that opposite party accepted registration fee and no other fee was charged from the patient and therefore, the complainant is not a consumer. In support of his argument, the learned counsel referred to the judgment of Hon'ble Supreme Court in Indian Medical Association Vs. V.P.Shantha & Ors., 1996 AIR 550, wherein the following has been observed:-

"The other part of exclusionary clause relates to services rendered "free of charge". The medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals) broadly fall in three categories:-

(i) where services are rendered free of charge to everybody availing the said services.

(ii) (where charges are required to be paid by everybody availing the services and

(iii) Where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.

There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1) (o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act.

The question for our consideration is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2(1) (o) of the Act. In our opinion the question has to be answered in the negative."

It was stated that the complainant will fall in the category (iii) and therefore, cannot be considered as consumer.

On the other hand, learned counsel for the respondent/complainant stated that the opposite party no.1 did not seriously consider the open vascular injury, which should have been the first priority to treat. It was argued that the patient had paid Rs.25/- as admission charges and Rs.300/- was also paid for one bottle of blood. Therefore, it cannot be said that the treatment in the hospital was free. Though no receipt was given for Rs.300/-, however, this has been admitted in the written statement filed by the opposite party No.1. Learned counsel for the respondent also agreed that as per this judgment in Indian Medical Association Vs. V.P.Shantha & Ors. (supra) he belongs to category (iii). However, because apart from registration charges, he has also paid Rs.300/- for blood charges, therefore, he is definitely a consumer. Learned counsel for the complainant stated that there were many shortcomings in the treatment given by the opposite party No.1 and nothing has been recorded in the medical papers as observed by the State Commission in the following paragraph:-

"19. The perusal of the admission record Ex.C-2 shows that the column of 'Final Diagnosis' is blank and the column of 'Surgical Procedure' is also blank. Column of 'Bill for Hospital Charges' is also blank, which includes the charges for various tests, admission, room rent etc. No mention of vascular injury was made anywhere in Ex.C-2, which was prepared by appellant no.1. Had appellant no.1 diagnosed the vascular disease immediately, he should have referred respondent no.1 for expert management to some specialist. Distal pulse was also not checked to know whether the patient was suffering from any vascular injury or not. Dr. Varun Singh of C.M.C. & Hospital, Ludhiana was examined, whose statement Ex.Z1 was recorded on 03.06.2011, but the statement of this witness cannot be taken as opinion of an expert, because he was a Junior Resident and has come just three months earlier in the department as M.S. Student, but the fact remains that at the time of the admission, appellant no.1 did not bother to carry out the necessary tests and to follow the proper surgical procedure and on the very next day, respondent no.1 was told by the doctors of C.M.C. & Hospital, Ludhiana that the amputation of the right leg above knee is immediate and accordingly, the same was done on 30.08.2010. ................"

I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and have examined the material on record. From the observations of the State Commission in para 19 as mentioned above, it is clear that first of all the treating doctor, Dr. Rajesh Chander, opposite party No.1 did not prescribe any tests to be conducted on the patient like initial blood tests and x-ray etc. on the day the patient was admitted to know the seriousness and gravity of the injury. Moreover, it was an open vascular injury, but the same was not recorded and not treated whereas it was to be treated urgently. Moreover, no attention was given by the appellant No.1 inspite of repeated requests made by the complainant in respect of his increasing pain and other serious symptoms such as discolouring of skin etc. Consequently, the patient had to leave the civil hospital in despair and ultimately within four days his leg was amputated. This clearly speaks of the negligence on the part of the doctor when the patient was first treated by him. Thus there has been negligence in giving the initial treatment by opposite party No.1 which is proved by the treatment record and discharge summary of the CMC & Hospital, Ludhiana.

On the basis of the above examination, I am of the view, that clearly opposite party No.1/petitioner No.1 Dr. Rajesh Chander has been negligent in not giving the required treatment to the patient and therefore, he is liable to pay the compensation to the complainant. In a case having similar facts, the Hon'ble Supreme Court in Shoda Devi Vs. DDU/Ripon Hospital Shimla & Ors., II (2019) CPJ 12 (SC) has observed the following:-

"15. As regards the quantum of compensation in such cases, it is noticed that in the case of Alfred Benddict v. Manipal Hospital: I (2017) CPJ 8 (SC) =(2015) 11 SCC 423, where, for the reason of medical negligence, a 2-year-old girl developed gangrene in right arm which resulted in its amputation, this Court, considering the age of the child and her life-long suffering, be it her education or marriage prospects, awarded a lump sum of Rs.20,00,000/- as compensation. Likewise, in the case of Nizam's Institute of Medical Sciences (supra), where the complainant had suffered paraplegia as an outcome of the surgery and was thereafter confined to a wheelchair, this Court pointed out some of the factors that weigh in while quantifying compensation in such cases. This Court, inter alia, observed as under:-

"90. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and 9 disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.

We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.

Mr. Tandale, the learned counsel for the respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method."

In the ultimate analysis, the requirement in such cases of disablement due to medical negligence is of awarding just and reasonable compensation to the victim, while keeping in view the pecuniary damages as also the non- pecuniary damages like pain and suffering and loss of amenities of life.

16.2 We are constrained to observe that the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the appellant, had been too restrictive in award of compensation. Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation (of course, after having regard to all the attending circumstances).

16.3 Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to 11be treated with equal respect and sensitivity. We are impelled to make these observations in the context of an uncomfortable fact indicated on record that when the appellant was writhing in pain, she was not immediately attended at and was snubbed with the retort that 'the people from hilly areas make unnecessary noise'. Such remarks, obviously, added insult to the injury and were least expected of the professionals on public duties."

Relying upon the above judgment of the Hon'ble Supreme Court and on the facts mentioned by the State Commission as well as considering the treatment record and the discharge summary of the CMC & Hospital Ludhiana, I find that the compensation awarded by the State Commission is not on a higher side, rather it is quite reasonable in the facts and circumstances of the case.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 23.05.2013 passed by the State Commission which calls for any interference from this Commission. Consequently, the revision petition No.3249 of 2013 is dismissed with no order as to costs.