AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. Inder Jit Singh, Presiding Member
These six RPs, the three sets of cross RPs, have been filed by the Parties, as detailed below, under section 21(1)(b) of Consumer Protection Act 1986, against the orders dated 16.09.2019 of the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur, (hereinafter referred to as the ‘State Commission’), in various First Appeals (FAs) in which order dated 11.09.2018 District Consumer Disputes Redressal Forum, Jhunjhunu (hereinafter referred to as District Forum) in various Consumer Complaints were challenged.
Three complaints viz. CC/366/2013, CC/365/2013 and CC/364/2013 were filed before the District Forum by three complainants viz. Sh. Rameshwar Lal, Mr. Khayali Ram and Smt. Revati Devi respectively and were disposed off by a common order dated 11.09.2018 of the District Forum. Nine Appeals were filed challenging the said common order in the three consumer complaints as per following details:-
a. FA/822/2018, FA/823/2018 and FA/824/2018 were filed by Mahadeo Singhi Netra Chikitsalaya, Dr. Pramod Kr. Sehgal and Dr. Amitabha Chakrabarti (Three Appellants jointly filing three Appeals).
b. FA/863/2018, FA/864/2018 and FA/865/2018 were filed by United India Insurance Company Ltd.
c. FA/495/2019, FA/497/2019 and FA/496/2019 were filed by the complainants Sh. Rameshwar Lal, Mr. Khayali Ram and Smt. Revati Devi respectively.
d. The nine Appeals were disposed off by the State Commission vide three common orders, of dated 16.09.2019 viz. (i) FA/822/2018, FA/863/2018 and FA/495/2019, (ii) FA/823/2018, FA/864/2018 & FA/497/2019 and (iii) FA/824/2018, FA/865/2018 & FA/496/2019.
e. Against the said three common orders in nine FAs, six Revision Petitions have been filed. Three RPs viz. No. RP/2728/2019, RP/2729/2019 & RP/2730/2019 have been filed challenging the said common orders by the three Petitioners viz. Mahadeo Netra Chikitsalaya, Dr. Pramod Kr. Sehgal and Dr. Amitabha Chakrabarti jointly. The other three RPs viz. Nos. RP/557/.2020, RP/558/2020 and RP/559/2020 have been filed by the three complainants viz. Sh. Rameshwar Lal, Sh. Khayali Ram and Smt. Revati Devi, challenging the three common orders in FA. No RP has been filed by the United India Insurance Company. As Smt. Revati Devi (Petitioner in RP/557/2020 and Respondent No.1 in RP/2730/2019) died, an application -IA/8260/2022 dated 01.09.2022 was filed for impleading her legal heirs. Same is allowed.
As the issues involved in six RPs are same/ related, arising out of allegations of medical negligence by the three complainants Mr. Rameshwar Lal, Mr. Khayali Ram & Smt. Revati Devi against the three OPs viz. Mahadeo Netra Chikitsalaya, Dr. Pramod Kr. Sehgal and Dr. Amitabh Chakrabarti, these are being dealt together. United India Insurance Company Ltd. was OP-4 in the three consumer complaints.
The main prayer in three RPs filed by OP-1 to OP-3 is for setting aside the order(s) of the State Commission and to stay the operation of the order. The main prayer in three RPs filed by the three Complainants is for enhancement of compensation awarded by State Commission.
Notice was issued to the Respondent(s) in all the RPs. Parties filed Written Arguments/Synopsis on 19.03.2020 (Petitioners herein) and 05.06.2023 (Respondents herein) respectively. For the sake of convenience we will refer to the parties as they were arrayed in the CCs before the District Forum.
Brief facts of the case, as emerged from the RPs, Orders of the State Commission, Orders of the District Commission and other case records are that (taking RP 2728 of 2019 as lead case) the complainant (Rameshwar Lal) sought medical treatment for vision problems at OP-1 (hereinafter also referred to as Hospital). OP-2 (Dr. P.K. Sehgal) examined the complainant and diagnosed cataract in the left eye, recommending surgery to restore vision. The surgery took place on 15.01.2013, at the Hospital, performed by OP-2. However, the surgery was allegedly carried out carelessly and without sufficient skill, resulting in pain and discomfort in the operated eye. Despite the complaint of pain, the complainant was discharged on 16.01.2013. It is alleged that the operation lacked necessary care, attention, and proper sterilization of equipment. Furthermore, it is claimed that the use of multi-dose vials of medication, including Dexamethasone, without proper testing, led to infection and severe pain in the operated eye. The complainant continued taking medications as advised by the Hospital, but the pain persisted. On 17.01.2013, the complainant visited Hospital seeking treatment, but OP-2 was reportedly out of town. OP-3 (Dr. Amitabha Chakrabarti) provided necessary treatment and referred the complainant to Dr. Rajendra Prasad Centre for Ophthalmic Sciences in New Delhi on 18.01.2013. The complainant underwent examinations at the Emergency Department of the center, reporting pain, redness, and fever. Despite receiving treatment, the complainant's condition did not improve, and he permanently lost vision in the left eye. Two other patients (Sh. Khayali Ram and Smt. Revati Devi, Complainants in CC/365/2013 and CC/364/2013) also suffered eye infections and vision loss following their surgeries for cataract. An inquiry was conducted at the request of the District Collector, and the findings revealed irregularities such as using plastic bottles instead of glass bottles for packing the fluid, administering injections from multi-dose vials, early discharge of patients, and OP-3’s lack of registration with the Rajasthan Medical Council, despite holding a diploma in Ophthalmology.
Vide Order dated 11.09.2018, in the CC no. 364, 365, 366 of 2013 the District Forum has partially admitted the three complaints and ordered OPs to pay Rs.2,50,000/- to each of the complainants with 8% annual interest on the amount payable from the date of presentation of complaint till the date of actual payment and Rs.3300/- to each complainant as expenses of the case.
Aggrieved by the said Order dated 11.09.2018 of District Forum, both Complainants and OP(s) appealed in State Commission and the State Commission vide order dated 16.09.2019 in FA/822/2018, FA/823/2018 and FA/824/2018; FA/863/2018, FA/864/2018 and FA/865/2018; FA/495/2019, FA/497/2019 and FA/496/2019 has enhanced the compensation to Rs.4,00,000/- with 9% interest and exonerated OP-4 (Insurance Company) from liability.
OP-1 to OP-3 have challenged the said Order(s) dated 16.09.2019 of the State Commission mainly/inter alia on following grounds:
i. The cataract surgery was performed following established protocols, and it was successful without any complications. On 16.01.2013, after the routine check-up by doctors and medical staff, all patients including Rameshwar Lal, Khayali Ram and Revati Devi, were discharged in satisfactory conditions and were given medication as advised. The surgeries of Revati Devi, Khayali Ram and Rameshwar Lal were performed with the required knowledge, skills, and care by OP-2.
ii. Despite taking necessary precautions during the cataract surgery and post-operative period, complications such as iridocyclitis and hypopyon can occur, which are known risks associated with the procedure. One patient developed hypopyon and was referred to a specialized centre for further treatment. The complainants sought medical assistance and were appropriately diagnosed and referred for further care. The OPs (OP-1 to OP-3) cannot be held responsible for these complications as they are not indicative of negligence. An internal inquiry committee conducted by OP-1 Hospital found that the affected patients were operated on by different surgeons using different medications and lenses from different companies. Furthermore, the investigation revealed that out of the 10 patients, only three (Complainants) were affected by hospital-borne infection, and all culture reports were negative for infection. Thus, the hospital cannot be considered the source of the infection, and the possibility of patients acquiring infections outside the hospital has not been ruled out. Therefore, based on the above circumstances, the OPs cannot be held liable for the complications or infections that occurred in this case.
iii. The interpretation of the report of the Inquiry Board by the Fora has been inaccurate. The report did not find any deficiencies in medical protocols or the surgical procedures conducted at the OP-1 Hospital. While the Board mentioned the use of plastic bottles instead of glass bottles for packing fluid (RL) in the operation theatre, it should be noted that both glass and plastic bottles are deemed acceptable by the All India Ophthalmological Society (AIOS). Similarly, the Board's observation regarding the use of multi dose vials of injections in IOL operation as inappropriate does not align with established medical practices, as there are no specific contraindications for the use of multi dose vials in the field of medical science. Furthermore, it is pertinent to mention that OP-3 (Dr. Chakrabarti) is duly registered with the Indian Medical Council and the West Bengal Medical Council, which authorizes him to practice anywhere in India as per Section 27 of the Indian Medical Council Act, 1956. This validates his competence and legitimacy as a medical practitioner. Considering these facts, the misinterpretation of the report by the Fora and the registration status of Dr. Chakrabarti, it is evident that the OPs should not be held accountable based on these grounds.
iv. Based on the available records, an expert opinion provided by a senior professor from a government medical college has concluded that there was minimal negligence on the part of the Hospital and operating surgeons. This opinion has been considered by the Penal and Ethics Committee, which has determined that there was no medical negligence on the part of the treating doctors. As a result, the case was closed by the relevant authority, the RMC (Rajasthan Medical Council). However, the State Commission has made a significant error by absolving the insurance company of liability. This decision contradicts the earlier order passed by the District Forum, which had held the insurance company liable. The State Commission's decision disregards established legal principles. Once liability has been established by the District Forum, the insurance company cannot evade its responsibility by claiming a lack of privity of contract with the complainant. The insurance company should be held accountable as determined by the initial order.
Complainants have challenged the said order(s) dated 16.09.2019 of the State Commission mainly/inter alia on following grounds:
(i) The District Forum as well as the State Commission has both determined that the OPs (OP-1 to OP-3) have provided deficient services during the complainants operation. As a result, the complainants have suffered significant mental and physical discomfort and have incurred substantial expenses for their treatment. Moreover, the complainants now face a permanent disability as their vision has been permanently lost, rendering them unable to perform their day-to-day tasks. Due to these circumstances, the Complainants are entitled to indemnification for their daily needs or an amount that adequately compensates them for the nature of their disability.
(ii) The District Forum as well as the State Commission acknowledges the negligence and deficiency in services on the part of the OPs. However, it fails to consider the fact that the Complainants have been seeking justice since 2013. Taking into account the nature of the deficiency and the prolonged duration of the litigation, it is evident that the awarded amount cannot be deemed just and appropriate. Therefore, the impugned order issued by the Hon'ble State Commission should be modified, and the awarded amount should be correspondingly increased.
Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RPs, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
(i) Counsels for the OPs (OP-1 to OP-3) argued that the State Commission has failed to address the decision of the Rajasthan Medical Council, which cleared the OPs of any wrongdoing after considering an Expert Opinion. Ophthalmitis (Infection) is a known complication of cataract surgery, and when it was detected on the third postoperative day by the treating doctors/petitioners, the patient(s) was/were promptly referred to a higher medical centre for specialized treatment. Therefore, the treating doctors took all necessary steps during the surgery and postoperative care, and they cannot be held accountable for any alleged negligence or service deficiency. The Rajasthan Medical Council has also absolved the doctors/surgeons of any charge of medical negligence. The Penal and Ethics Committee, after consulting a Senior Professor, has concluded that there was no medical negligence on the part of the treating doctors, and thus the case should be closed. Consequently, the RMC, in its order dated 24.10.2013, found no medical negligence attributable to OP-2 and OP-3.
(ii) Counsels for the Complainants argued that the District Forum as well as the State Commission have observed that the OPs, in these cases, have provided deficient services during the respondents’ surgery. As a result, the Complainants have suffered significant mental and physical discomfort, incurred substantial expenses for treatment, and now faces a permanent disability, namely the loss of vision, which prevents them from carrying out their daily activities. Based on these grounds alone, the Complainants are entitled to receive compensation that covers their day-to-day needs or an amount that adequately compensates them for the nature of their disability. Therefore, considering the circumstances, the order issued by the State Commission should be modified, and the awarded amount should be increased accordingly.
In the present case(s) there are concurrent findings of medical negligence/deficiency of service on the part of OP-1 to OP-3. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.” It was held by Hon’ble Supreme Court in Syed Akbar Vs. State of Karnataka [(1980) 1 SCC 30] and as retreated/quoted in Jacob Mathew Vs. State of Punjab & Anr. [(2005) 6 SCC 1] that there is a marked difference as to the effect of evidence viz proof in civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt. Degrees of negligence in criminal negligence and negligence under civil law are jurisprudentially different. It is only to fasten liability in criminal law that degree of negligence has to be gross or of higher degree. Negligence, which is neither gross or of higher degree may provide a ground for action in civil law. In Savita Garg Vs. The Director, National Heart Institute [AIR 2004 SC 5088] Hon’ble Supreme Court observed that the Consumer Forum is primarily meant to provide better protection in the interest of the consumers and not to short circuit the matter or to defeat the claim on technical grounds.
Hence, considering all the facts and circumstances of the case(s), as regards RPs 2728/2019, 2729/2019 and 2130/2019 are concerned, we do not find any illegality, material irregularity or jurisdictional error in the impugned Order(s) passed by the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. We do not find any merit in the present RP/2728/2019, RP/2729/2019 and RP/2730/2019 and the same are dismissed. Consequently, the impugned orders dated 16.09.2019 passed by the State Commission are upheld. If the OPs-1 to 3 have a valid Insurance Policy(ies), they have the option to file an insurance claim(s) with United India Insurance Company (OP-4) who will take appropriate decision on merits as per the terms and conditions of the policy.
As regards RPs 558/2020, 559/2020 and 557/2020 for enhancement of compensation, considering the entire facts and circumstances of the case(s), including the seriousness of the medical negligence, the permanent disability suffered by the complainants in terms of loss of vision, the lengthy duration of the litigation etc., we find that the compensation awarded by both the fora is inadequate. The Complainants have endured significant physical, emotional, and financial hardships. It was observed by the Hon'ble Supreme Court, in Dr. Balram Prasad vs. Dr. Kunal Saha & Anr. [(2014) 1 SCC 384] and Maharaja Agrasen Hospital vs. Master Rishabh Sharma [2019 SCC Online SC 1658] that compensation should be determined in accordance with the principle of restitutio in integrum. This principle aims to restore the injured party to the position they would have been in if the wrongful act had not occurred. Applying these principles it is clear that an enhanced amount of compensation is necessary to ensure that justice is done. Accordingly, we enhance the compensation awarded by State Commission from Rs. 4,00,000/- to Rs 6,00,000/- to each of the complainants (Petitioners in RPs 558/2020, 559/2020 and 557/2020) along with interest @9% p.a. from the date of complaints till the date of actual payment. The payment should be made within a period of two months, failing which the Complainants shall be entitled to interest @12% p.a. till its realization. Hence, RPs 558/2020, 559/2020 and 557/2020 are allowed and State Commission’s orders stand modified to this extent.
Parties to bear their respective costs.
The pending IAs in the case, if any, also stand disposed off.