Mohd. Siddique Khan vs Forest Divisional Offficer

Karuna Nand Bajpayee, Presiding Member

This revision petition has been filed in challenge to the Order dated 23.11.2023 in Appeal No. 278 of 2007 of the State Commission Uttar Pradesh arising out of Order dated 04.01.2007 of the District Commission in Complaint no. 203 of 2003.

It appears that the complaint was filed before the District Commission which proceeded in the matter in accordance with law and eventually allowed the complaint passing the following award which reads as follows:-

“Allowing the prayer of the complaint, the opposite party is directed to comply with the order within the 45 days of the passing of this order, compensate Rs. 50,00 as the cost in conduction the operation of the deceased Mr. S.K. Gupta, Rs. 1,00,000 to compensate for the agony suffered and deficiency in service, and 1000 rupees as legal cost. The Order if not followed within the prescribed time, interest shall be levied at the rate of 6% of annually from the date of order till the payment of the compensation.” (As per the translated copy of the order of the District Commission furnished by the petitioners)

Feeling aggrieved by the same the petitioners seem to have filed an appeal before the State Commission unsuccessfully.  The State Commission finding no fault in the Order passed by the District Commission dismissed the appeal and confirmed the Order passed by the District Commission. Thus the present petition has been filed against the concurrent findings of deficiency of service and negligence which made the husband of the complainant suffered irredeemably who eventually expired.

Heard counsel for the petitioners and perused the record including inter alia the Orders passed by the District Commission and the State Commission. The allegations which evince out from the perusal of the original version of complaint in Hindi are to the following effect:-

The husband of the complainant had developed urinary problem and in that regard he had been shown to one Dr. Shekhar Vajpeyi a urologist.  After examining the patient Dr. Shekhar Vajpeyi had advised to get his prostrate operated. After a few days on 21.03.2003 the late husband of the complainant developed urinary problem and as such was taken to a nursing home where the petitioner no. 2 Dr. Vidya Gupta got the patient immediately admitted and called Dr. Umakant Gupta, petitioner no.1.  Dr. Umakant Gupta also advised the operation of the prostrate. The Complainant, on being asked deposited Rs. 10,000/- and she and her sons were asked to go out.  Soon thereafter they discovered that the patient, the husband of complainant had been taken to operation theatre.  Thereafter it was informed that the operation has been performed.  On being so told the petitioner Dr. Umakant Gupta was asked how and why so much of haste was shown in performing the operation and why it was not even told that the act of surgery is going to be performed right away and as to how and why requisite informed permission was not sought.  The doctor was also asked as to why the requisite pre-operational tests were not performed despite the fact that the patient was hypertensive and asthmatic.  On these queries the only answer given by the doctor was that it was not felt needed.  Thereafter when the patient was brought to the room one Dr. S.K. Singhal was summoned who is said to have expertize relating to heart and asthmatic problems.  Dr. Singhal after examining the patient exclaimed his bewildered surprise and told that the pulse rate and breathing both are constantly going down and the patient is getting very serious.  Dr. Singhal administered oxygen and some injections and asked to immediately arrange for the blood.  The son of the complainant immediately arranged for the blood which was transfused. The patient also lost his consciousness and was not showing much improvement.  Dr. Singhal advised to arrange for one more unit of blood which was again transfused.  Yet another unit was asked for, which was also transfused but the haemoglobin was found to be only 5-9 gm% while on 18.03.2003 when Dr. Shekhar Vajpeyi had got the blood test done it was reported to be 14 gm%.  The allegations of gross negligence committed by the petitioners have been made in the complaint resulting in this situation of the patient. After keeping the patient for five days when he gained some consciousness the petitioner no. 1 told the complainant to take the patient back home.  Keeping in view the poor condition of the patient the sons of the deceased beseeched the doctor to keep him in the hospital for some more days.  It has also been alleged that the catheter which was inserted in the patient was bringing red coloured urine and the whole abdomen had swelled up.  The stitches inserted were oozing out fluid.  The family members told the petitioners to call another doctor if needed and they will bear the expenses but the petitioner no. 1 assured the family members that the patient was alright asking them to take him back home and feed him properly and come after three days for bandaging.  It has been alleged that even though there was no improvement in the health of the patient, he was discharged.  Subsequently, after three days the stitches started oozing out the pus but the doctor sent the patient back after changing bandage telling that it so happens sometimes but the family members should not loose the nerves.  Again on 07.02.2003 when the patient was brought to the petitioners the fowl-smelling pus was oozing out from the stitches.  The patient was again sent back.  On 09.02.2003 the discharge of pus went up and there was complete blockage of urine and the pain became unbearable.  The patient was again brought to the petitioners but looking to his grave condition he was sent to Ram Raghu Hospital to be admitted in ICU.  It was also told by the petitioners that he will keep coming to see the patient there.  There the further investigations were done and it was told that there is severe infection and sepsis and it was all due to the negligence in the treatment that had been done.  The family members approached the petitioner and protested for mishandling the patient and also expressed the grouse as to why he did not come to see the patient as promised on which the petitioner got enraged.  A number of other details regarding the payments etc. have been narrated in the complaint and also the details as to how the condition further deteriorated eventually resulting in his death on 23.02.2003.  The submissions which were raised before the District Commission in the defence of the petitioners were the same as they have been reiterated all throughout.  It has been submitted by learned counsel for the petitioners that the petitioner no. 1 is an MBBS, MS and, therefore, he conducted the surgery of the patient by using the accepted methods and it cannot be said that he was not a qualified man to do the operation.  With regard to the omission of getting the necessary investigative tests done before operation it has been pleaded that as a few days before Dr. Shekhar Vajpeyi had conducted the pathological tests it was not founded needed.  Submission is that the patient was hypertensive and asthmatic and had developed prostrate-related issues which resulted in the complications and even though operation was successful, the infection occurred for which the petitioners are not to be blamed.  It has also been submitted that the formality of taking permission was complied with and there is no lapse on the part of the petitioners.

The perusal of the Order of the District Commission shows that all the relevant facts have been considered and have been gone into.  The hub of the matter which persuaded the District Commission to pass the Order which it did was that the petitioner no. 1 was a general surgeon who was not having any specialized qualification to deal with the specific problems pertaining to the urinary problems and the problems relating to prostrate. In the view of the District Commission given the health background of the patient which he had, a specialized urologist was the competent man to undertake the operation and at least his help ought to have been sent for but the operation was conducted  bypassing the requirement of getting even the preliminary investigations done.  It was only after the patient developed complications that he was referred to specialized doctors.  That appears to be the background of reasoning which persuaded the District Commission to allow the complaint.

When the matter was looked into by the State Commission it also went through the entire record and did not find any good reason to take a different view of the matter and concurred with the findings and dismissed the appeal as meritless.

Learned counsel while arguing the petition here has tried to submit that the Order passed by the State Commission reflects that it has not applied its judicial mind properly as at one place it has observed that the petitioner doctor was an MD physician.  Submission is that this being a factual error should be sufficient to hold the Order passed by the State Commission as erroneous and untenable.  The Bench has perused the Order passed by the State Commission and also the observations made by the State Commission in its Order in this regard.

The basic reasoning that has been adopted by the District Commission which led to the passing of its Order may be quoted hereinbelow:-

“After hearing the contentions and perusing the pleadings it is evident that opposite party no. 1 is a general surgeon and the patient’s problem pertained to the prostate and passing of urine and for that the operation should have been conducted by a urologist and his help should've been taken but the opposite party 1 conducted it without any help of any specialist on his own in a hurry, without conducting any test. And after the operation when the patient's health deteriorated then he was referred to the specialist doctors.

In our opinion opposite party is liable for gross negligence without the requisite skill, conducted prostate operation due to which infection occurred leading to sepsis due to which the patient died. The opposite party is liable for deficiency in service.” (As per the translated copy of the order of the District Commission furnished by the petitioners)

The State Commission had agreed with the view taken by the District Commission.  It appears that the words written in the Order which have been referred to by the learned counsel emanated out of an inadvertent typographical error only and will not go to adversely affect the original findings arrived at by the District Commission which have been affirmed by State Commission. At any rate as a matter of abundant precaution and in order to obviate any possibility of injustice being done this Bench has itself gone through the entire record including the Order passed by the District Commission and finds itself in complete agreement in the findings arrived at by the fora below.  The Order passed by the District Commission is a well vetted, well considered and well weighed Order and certainly deserved to be affirmed by the State Commission.  There was no reason to take any other view than the view which had been taken by the District Commission. The erroneous expression in the Order of the State Commission, therefore, cannot be blown out of proportion. The complaint has been allowed primarily for the reason that the patient had the history of some collateral ailments like asthma and hypertension and the way a general surgeon / petitioner rushed to perform the operation reflects an unholy haste which appears to have primarily contributed to the worsening of the condition of the patient who eventually succumbed to it.  In fact if at all any observation may be made it may be made to the effect that the relief which has been granted by District Commission is on the lower side. But as we are not dealing with an appeal for enhancement it is not needed to enter into this aspect of the matter.  Suffice it to observe that there is no reason to interfere in the impugned Orders.

It may also be observed that while exercising the revisional jurisdiction this Commission has to act within a defined ambit as has been provided by the statute. Unless it may be shown that the lower fora have exceeded in its jurisdiction or have failed to exercise the same, this Commission is loath to interfere in the concurrent findings of negligence and deficiency as are apparent on the face of record on the part of the petitioners.  This Commission also may step into and interfere if some material irregularity may be shown in the impugned Order.  There is certainly no element of perversity visible in the impugned Order which could be said to have vitiated the same. Suffice is to say that the Bench finds the Order passed by the State Commission to be well-appraised and well-reasoned. The Bench does not notice any jurisdictional error or material irregularity as may go to vitiate the findings. It also does not find any reason to make fresh de novo re-appraisal of the evidence in revision. There is no good ground found for interference in the impugned Order in the exercise of the revisional jurisdiction of this Commission. The Bench has not been able to discern any legal principle having been overlooked or wrongly ruled by the State Commission. Certainly the State Commission cannot be castigated either to have overstepped or transgressed its jurisdiction or to have omitted to exercise the same rightfully. The facts and circumstances appear to have been weighed and vetted well and to our satisfaction.  (Refer: Order dated 08.09.2022 of Hon’ble Supreme Court in Civil Appeal No. 5928 of 2022 Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. & Anr. & Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269)

The petition lacks merits and stands dismissed.

The Registry is requested to send a copy each of this Order to all parties in the petition and to their learned counsel. The stenographer is requested to upload this Order on the website of this Commission immediately.