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Judgment
Prem Narain, Presiding Member
Revision Petition No.652 of 2013 has been filed by the petitioner Manager, New India Assurance Co. Ltd. and Revision Petition No.2291 of 2013 has been filed by Dr. Vipul Rai & others against the order dated 05.12.2012 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission) passed in First Appeal No.955 of 2012 & First Appeal No.768 of 2012.
Brief facts of the case are that Sh. Suresh Kumar Monga a cashier in Punjab National Bank, Sirsa suffering from piles (Haemorrhoids) visited Dr. Vipul Rai running clinic under name and style of Monika Hospital at Rania Gate, Sirsa. Dr. Vipul Rai assured Suresh Kumar Monga in the presence of Smt. Veena Rani that he was a competent doctor for this disease. Dr. Vipul Rai admitted Suresh Monga to his hospital for treatment of piles on 15.10.2006. Dr. Vipul Rai tied a thread to haemorrhoids and performed surgery, made a cut with an instrument, and there was severe bleeding. Smt. Veena Rani complainant not being aware of competency of doctor to treat her husband was entirely at the mercy and suggestion of respondent-doctor. Smt. Veena Rani inquired about the condition of the patient and about severe bleeding from the respondent-doctor. Dr. Vipul Rai left the hospital on an excuse. The doctor discharged Suresh Monga on a lame excuse on 22.10.2006. Dr. Vipul Rail charged Rs.2,597/- on account of hospital charges (Rs.200/- operation theatre charges, Rs.400/- bed charges, Rs.497/- medicines charges and Rs.1,500/- surgery fee). Smt. Veena Rani came to know that Dr. Vipul Rai performed an operation and condition of her husband has deteriorated and her husband started vomiting and feeling difficulty in breathing. Dr. Vipul Rai left the patient and the members of the family in a critical condition. Suresh Monga was immediately shifted to Talwar Nursing Home, Sirsa with the help of a relative namely Pardeep Sachdeva. The doctor at Talwar Nursing Home, Sirsa found that the condition of the patient was critical due to operation by an unqualified doctor and referred the patient to tertiary care centre for ventilatory support and further management after about five hours at about 11.00 pm on 22.10.2006. Talwar Nursing Home,Sirsa charged Rs.3,000/-. Smt. Veena Rani took her husband to CMC Hisar and thereafter to Inderperstha Apollo Hospital, New Delhi. Suresh Monga remained admitted in Inderperstha Apollo Hospital, New Delhi from 23.10.2006 till death at 09.50 am on 2.11.2006. The cause of death was portal pyaemia with septicaemia with multiple organ failure. The complainant spent an amount of Rs.5,50,000/- on the treatment of her husband. Smt. Veena Rani alleged that Suresh Monga died due to negligence on the part of Dr. Vipul Rai who was not competent or qualified to perform surgery and to prescribe allopathic medicines and filed a consumer complaint for adequate compensation, costs of litigation etc.under Section 12 of the Consumer Protection Act, 1986. Dr. Vipul Rai, Monika Hospital, Sirsa appeared and filed written version in the case. It was averred that the respondent-doctor is qualified B.A. M.S. and is registered under the Ayurvadic and Unani Medical Council (Haryana) under the Indian Medicine Central Council Act and a qualified and experienced, medical practitioner, Suresh Kumar Monga was admitted to the clinic for piles in anus and was treated to the best of knowledge and skill from 15.10.2006 to 22.10.2006. Suresh Kumar Monga was cured and was charged doctor fee and hospital charges. The respondent-doctor maintains a standard hospital, with all required medicines and apparatus as per specifications. Suresh Kumar Monga was in good condition during stay in the hospital. It was denied that opposite party was responsible for the death of Suresh Kumar. All the remaining allegations were specifically denied and it was prayed that the complaint be dismissed with costs.
The District Consumer Disputes Redressal Forum, Sirsa, (in short 'District Forum') vide its order dated 18.05.2012 allowed the complaint as under:-
"20. The complaint, therefore, succeeds and is partly allowed. Both Dr. Vipul Rai and his indemnity insurer that is New India Assurance Company Limited, Sirsa, opposite parties are directed to make payment of compensation amount of Rs.6,22,000/- with interest on the award amount at the rate of 6% per annum from the date of filing of the complaint that is 22.1.2007 till realization. The complainants shall also be entitled to Rs.15,000/- for harassment, mental tension, agony etc. and Rs.3,000/- costs of proceedings. We direct both the opposite parties to implement the present order within a period of two months failing which the complainants shall be entitled to invoke the jurisdiction of the Consumer Forum under Section 25 and/or 27 of the Consumer Protection Act, 1986. Dr. Vipul Rai and his indemnity insurer New India Assurance Company Limited, Sirsa, both the parties shall be jointly and severally liable to implement the order. We may hasten to add that the liability of the New India Assurance Company Limited, Sirsa, Insurance Company shall however is limited to the extent of Rs.3,00,000/- liability mentioned in the insurance policy (Ex.R2)."
Aggrieved by the order of the District Forum, both the opposite parties preferred appeals No.955 of 2012 and 768 of 2012 before the State Commission. The opposite party No.1 Dr. Vipul Rai preferred appeal No.768 of 2012 and the Insurance Company preferred appeal No.955 of 2012 before the State Commission. The State Commission vide its common order dated 05.12.2012 dismissed both the appeals.
Hence the present revision petitions.
Heard the learned counsel for the parties and perused the record. The parties will be referred to as mentioned in the order of the District Forum for the sake of convenience. Learned counsel for the opposite party No.1, Dr. Vipul Rai stated that he performed the procedure as prescribed in the Ayurvedic literature. He is a B.A.M.S. (Bachelor of Ayurvedic Medicine and Surgery) doctor and he is authorised to do such procedure. Learned counsel further stated that this procedure is prescribed in the B.A.M.S. course, therefore, it cannot be said that B.A.M.S. doctor is not authorised to do this procedure. In respect of his contention learned counsel relied upon the copy of the prospectus that has been filed. It is asserted that under the chapter of Charak Samhita, this procedure is laid down. Learned counsel further relied upon the National Health Portal a copy of which has been filed. It is stated by the learned counsel that the procedure in respect of Kshara Sutra Therapy (Medicated Caustic Thread) is mentioned in the National Health Portal, wherein it is clearly written that:-
"Kshara Sutra therapy is a minimal invasive Ayurvedic Parasurgical procedure and time-tested Ayurvedic technique in the management of Anorectal disorders. It is a safe, sure and cost effective method of treatment for fistula-in-ano, haemorrhoids and other sinus diseases."
It was emphasised by the learned counsel for opposite party No.1 that the opposite party No.1 has done nothing unauthorisedly and he only followed the procedure given in the literature and he is authorised to do this procedure being a B.A.M.S. doctor.
In support of his assertion, learned counsel referred to the judgment of Hon'ble Supreme Court in Subhasis Bakshi and others Vs. W.B.Medical Council and others, (2003) 9 SCC 269, wherein the following has been held:-
"11. In this context it is worthwhile to discuss Dr. Mukhtiar Chand v. State of Punjab, (1998) 7 SCC 579. In this case the validity of Notifications issued by the State Governments of Punjab and Rajasthan, under Rule 2(ee)(iii) of the Drugs and Cosmetics Rules, 1945 whereby the Governments declaring some vaids/ hakims as persons practicing modern medicines were challenged. Upholding the validity of the Notifications and the said Rule, this Court held that, for the purpose of Drugs Act "what is required is not the qualification in modern scientific system of medicine but a declaration by a State Government that a person is practicing modern scientific system and that he is registered in a Medical Register of the State". In Dr. Mukhtiar Chand, this Court also clarifies that there could be two registers for medical practitioners i.e, Indian Medical Register and State Medical Register. As far as the State Medical Registers are concerned, the State Government concerned according to the rules will determine the required qualification. While recognizing the rights of vaids or hakims to prescribe allopathic medicines, this Court also took into account of the fact that qualified allopathic doctors were not available in rural areas and the persons like vaids / hakims are catering to the medical needs of residents in such areas. Hence the provision which allows them to practice modern medicine was found in the public interest."
Learned counsel for the opposite party No.1, Dr. Vipul Rai stated that the revisionist did not perform any surgery as understood in allopathy. He performed the procedure of "Kshar Sutra"which is a well established and well accepted procedure in Ayurveda and by no stretch of imagination this can be termed as a crude method or surgery as understood in allopathy. "kshar Sutra" is a Sanskrit phrase in which Kshar refers to anything that is corrosive or caustic; while sutra means a thread. Kshara sutra is an Ayurvedic medicated thread which is prepared by smearing a special Linen thread with Ayurvedic drugs. It is prepared by applying the coatings of apamarg kshara, haridra churna etc. with snuhi ksheer as binding agent. The thread is then sterilized by UV Radiation. The cumulative effect of the above mentioned three drugs exerts a powerful debridement effect on the fistula tract & induces healing by the fresh & healthy granulation tissues.
It has been alleged that the State Commission and also the DCDRF have ignored the fact that the Government vide Notification dated 22.01.2004 has further reiterated that "the institutionally qualified practitioners of Ayurvedia, Siddha, Unani Tibb are eligible to practice respective systems with modern Scientific medicine including surgery and Gynecology Obstetrics, Anesthesiology, ENT, ophthalmology etc. based on the training and teaching.
The learned counsel further stated that the State Commission and the District Forum have totally ignored the fact that the petitioner at no stage of the treatment of the patient violated any provision of law or any norms of his practice as a BAMS doctor and that he treated the patient with requisite skills, due care and as per standard Ayurvedic protocol and cannot be held liable for alleged medical negligence.
Revisionist is a well-qualified B.A.M.S. (Ayurvedacharya) doctor, he is authorised to practice in Indian System of Medicines as well as in Modern medicines as per Notification of the Central Council of Indian Medicine dated 30.10.1996, which stipulates:-
"As per provision under section 2(1) of the Indian Medicine Central Council Act 1970 (48 of 1970) hereby Central Council of Indian Medicine notifies that, "Institutionally qualified practitioners of Indian Systems of Medicines (Ayurveda, Sidha and Unani) are eligible to practice Indian Systems of Medicine and Modern Medicine including Surgery, Gynaecology and Obstratics based on their training and teaching which are included in syllabi of via courses of ISM prescribed by Central Council of Indian Medicine after approval of the Government of India. The meaning of the word "Modern Medicine" (Advances) means advances made in various branches of Modern Scientific Medicine, Clinical, Non-clinical, Bio-Sciences also Technological innovations made from time to time and notify that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are supplemented with such Modern Advances. Further it is clarified that the rights of practitioners of Indian Systems of Medicines to practice Modern Scientific Systems of Medicine (Allopathic Medicine) are protected under section 17(3) of Indian Medicine Central Council Act, 1970."
Learned counsel for the opposite party No.2 Insurance Company stated that no expert report has been obtained by the State Commission in respect of procedure adopted by the doctor opposite party No.1. Hence, no finding can be given on medical negligence by opposite party No.1. If treatment given does not become effective, it cannot be said that there was negligence on the part of the doctor, therefore, if the doctor has done the prescribed procedure for the treatment of piles then no negligence can be attributed to the doctor. Learned counsel stated that the policy is for indemnifying the compensation required to be paid by opposite party No.1 doctor for medical negligence, however, if there is no medical negligence, the policy is not attracted. Moreover, the opposite party No.1 has violated the terms and conditions of Clause 7 (1) (i) and 7(2) (ii) and conditions on which the policy was issued. The clause 7 (1)(i) reads as under:-
"No liability shall attach to the company in respect of any criminal act or any act committed in violation of any law or ordinance.
The Clause 7(2)(ii) reads as under:-
"This policy does not cover liability arising out of deliberate, willful or intentional non compliance of any statutory provisions.
This policy does not cover liability arising out of deliberate, willful or intentional non-compliance of any statutory provisions. It was further argued by the learned counsel that the opposite party No.1 not only performed the crude method of piles operation, but also treated the complainant's husband under allopathic system of medicines for which he was not authorized. This is a clear violation of terms and conditions of the policy, however, the State Commission has not considered this aspect and has ordered the Insurance Company also to pay the insured amount along with the opposite party No.1.
Learned counsel for the complainant stated that the husband of the complainant was totally all right and he was only suffering from the disease of piles. He approached the opposite party No.1, doctor to get the treatment of piles, however, the husband of the complainant was not aware that opposite party No.1 was not a proper medical doctor. The deceased was under the impression that the operation of piles would be done by opposite party no.1, however, opposite party No.1 performed such procedure. Again opposite party No.1 doctor performed another operation on 22.10.2006 when there was excessive bleeding and doctor left the hospital without taking any care of the patient and the patient was suddenly discharged. The patient was then taken to another hospital where the patient remained only for five hours and then patient was shifted to Apollo Hospital, where he remained admitted for few days and ultimately he died of severe infection. The cause of death as was given by the doctor in Apollo Hospital is portal pyaemia with septicaemia with multiple organ failure. The problem started with wrong operation done by opposite party No.1. Dr. Vipul Rai, Monika Hospital, otherwise the husband of the complainant was not suffering from any other disease except for the piles. The complainant had spent more than rupees five lacs in treatment of the husband of the complainant. However, the same has not been allowed by the State Commission. The State Commission has only allowed a compensation of Rs.6,22,000/- for the medical negligence on the part of the treating doctor . No appeal has been preferred by the complainant. It was requested that the decision of the State Commission may be maintained in these revisions.
I have carefully considered the arguments advanced by the learned counsel for the parties and have examined the record. It has not been denied that the doctor is B.A.M.S. doctor and therefore, he is authorised to practice modern system of Medicines as per Notification of the Central Council of Indian Medicine dated 30.10.1996. As the name of the degree viz 'Bachelor of Ayurvedic Medicine and Surgery', suggests that the surgery can be performed by a BAMS doctor. The literature that has been provided by the opposite party No.1 from the website National Health Portal , though states that this is an Ayurvedic procedure, however, it also mentions the following:-
Application of Kshara Sutra in Fistula-in-ano-
"The patient is anaesthetized with local or spinal or general anesthesia, then a malleable probe is passed through the external opening of the fistula to the internal opening in the anal canal and probe is gently taken out through anal opening to outside along with a Kshara Sutra in the groove of the probe. Later both ends of the Kshara Sutra is tied together. The Kshara Surtra is replaced by a new one after an interval of one week. The Kshara Sutra gradually cuts and heals the tract. Finally the whole fistulous tract heals after cutting."
From the above literature, it is clear that the procedure involves anaesthesia to be administered to the patient for performing this procedure. Clearly only anaesthetist is authorised to give anaesthesia to the patient before any operation and a general doctor or B.A.M.S doctor is not authorised to give any anaesthesia. If it is the stand of opposite party No.1 doctor that he has not used any anaesthesia then he has violated the procedure as given in the literature. On the other hand if he has followed the procedure given in the literature submitted by him, then it implies that the doctor must have administered some anaesthesia to the patient whereas he was not authorised to administer the anaesthesia. Thus, clearly procedure has been performed with negligence. In these circumstances, I do not find any merit in revision petition No.2291 of 2013 filed by the opposite party no.1/Doctor Vipul Rai and the same is liable to be dismissed.
Coming to the revision petition No.652 of 2013, it is seen that the doctor indemnification policy is from the opposite party No.2. The District Forum has awarded a compensation of Rs.6,22,000/- and out of which Rs.3,00,000/- is to be paid by the Insurance Company. When the negligence has been proved on the part of the doctor, the doctor indemnification policy comes into play and the Insurance Company is liable to pay the compensation ordered consequent to the finding of medical negligence. Clearly act of the opposite party No.1 Dr. Vipul Rai cannot be considered as a criminal act because there is no intent to harm the patient and there was also no mensria. The act of the doctor is only of negligence in performing the operation, which has led to the death of the patient. Moreover, no law has been violated as the doctor being a BAMS doctor is authorised to perform the operation as well as to use modern scientific methods and medicines as per notification dated 30.10.1996. Hence, the exclusions as per Clause 7 (1) (i) and 7(2) (ii) are not attracted in the present case. Therefore, I do not find any merit in the revision petition No.652 of 2013 filed by the New India Assurance Company Ltd.
Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 05.12.2012 of the State Commission which calls for any interference from this Commission and consequently, both the revision petitions being RP No.652 of 2013 and RP No.2291 of 2013 are dismissed. The order of the District Forum be complied with within a period of 45 days from the date of this order.