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Judgment
Prem Narain, Presiding Member
Order dated 29.2.2012 passed by the State Consumer Disputes Redressal Commission, Punjab, (in short 'the State Commission') in Appeal No.943 of 2007 has been challenged in these two revision petitions.
Brief facts of the case are that on 06.02.2005, one Sandeep and Rajwinder were going on motorcycle and met with an accident. Both injured were brought to the Badyal Hospital (opposite party No.1 in complaint case No.24 of 2007). Complainants are father and mother of Sandeep. The father Harnek Singh expired and has been substituted with LRs Mohinder Kaur wife and son Satbir Singh. Opposite party No.2 in the complaint Dr. Rajesh Badyal directed to deposit Rs.20,000/- for treatment of Sandeep. Opposite party No.2 forcibly shifted Sandeep to other hospital and on the way, he died. Rajwinder was given treatment after getting advance from his parents and then shifted to Satluj hospital where he remained upto 1.3.2005 and he survived. It has been alleged that due to negligence and non-performance of duty by the opposite parties Sandeep died. Complainants filed complaint bearing No.24 of 2007 before the District Consumer Disputes Redressal Forum, Bhatinda, (in short 'the District Forum'). The District Forum vide its order dated 24.5.2007 dismissed the complaint.
Aggrieved with the order of the District Forum, the complainants filed an appeal bearing No.943 of 2007 before the State Commission. The State Commission passed the following order on 29.02.2012:-
"34. Keeping in view the above discussion, Rs.15 lacs will be just and reasonable as lumpsum compensation. Respondents No.1 & 2 were insured with respondent No.3 for Rs.10 lacs, as such, the liability of respondent No.3 is to the extent of Rs.10 lacs although jointly and severally with respondents No.1 & 2. The remaining amount of Rs.5 lacs will be paid by respondents No.1 & 2 to the appellants. The above said amount be paid to the appellants within one month from the receipt of copy of the order."
Hence, hospital opposite party No.1 and Dr. Rajesh Badyal opposite party No.2 have filed revision petition No.2133 of 2012. Similarly opposite party No.3 has filed the revision petition No.2354 of 2012.
Heard the learned counsel for the parties and perused the record. Learned counsel appearing on behalf of the hospital and the doctor/opposite party Nos.1 & 2 stated that Sandeep was seriously injured in the accident and proper facilities of treatment were not available in the hospital owned by opposite party No.2 and therefore, Sandeep was not admitted in the hospital and was referred to a higher hospital where all facilities were available. It is wrong to say that doctor /opposite party No.2 accepted Rs.20,000/- from Rajwinder who was treated in the hospital. As the case of Rajwinder was manageable with the facilities available at the hospital, he was admitted and given treatment and then shifted to higher hospital. The opposite party No.1 and opposite party No.2 do not have any privity of contract with the complainants as no money has been either paid by the complainants to the opposite party Nos.1 & 2 nor promised to pay any amount to the opposite party Nos.1 & 2. Hence, the complainants cannot be considered as consumer qua the opposite party Nos.1 & 2 particularly, in the light of the fact that no service was provided to the son of the complainants or to the complainants by the opposite party Nos.1 & 2. The District Forum has rightly dismissed the complaint on the ground that there was no privity of contract between the complainants and opposite party No.1 or opposite party No.2. There was also no proof that opposite party No.2 demanded Rs.20,000/- as advance from the complainants for treating Sandeep. No proof has been filed by the complainants to prove that opposite party No.2 accepted Rs.20,000/- from the family members of Rajwinder. The finding has been given by the State Commission confirming the deficiency of service on the part of the opposite party No.1 and opposite party no.2 without any evidence. The order of the State Commission is based only on assumptions and presumptions, hence the same cannot be sustained and requires to be set aside.
Learned counsel for the opposite party No.1 and opposite party No.2 further stated that Insurance Company is a necessary party in the present case and the State Commission has also passed the order against the Insurance Company to the extent that Rs.10,00,000/- is to be paid by the opposite party No.3 as opposite party No.1 and 2 are insured with the Insurance Company, opposite party No.3 for Rs.10,00,000/-. If the opposite party Nos.1 and 2 are found negligent and deficient in service, then the Insurance Company is liable to pay the claim to the extent of awarded compensation subject to a limit of Rs.10,00,000/-. Thus, if the revision of opposite party No.1 and opposite party No.2 is not accepted then Insurance Company is liable to pay Rs.10,00,000/- out of the total compensation of Rs.15,00,000/- to be paid to the complainants.
Similarly learned counsel for the petitioner in other revision petition/opposite party No.3/Insurance Company stated that they have only insured the opposite party No.2 and if opposite party No.1/opposite party No.2 is saddled with any penalty for medical negligence then he can get that amount from the Insurance Company subject to Insurance Company approving the claim submitted by opposite party No.1/opposite party No.2. The State Commission has assumed that the Insurance Company will indemnify the claim of the opposite party No.1 and opposite party No.2 and had directed to pay Rs.10,00,000/- treating the liability of the opposite party No.3 jointly and severally with opposite party No.1 and opposite party No.2. Thus, in a way, the Insurance Company has been asked to pay an insurance claim without submission of any insurance claim. The order of the State Commission is patently illegal and should be set aside.
Learned counsel for the petitioner Insurance Company stated that the complainants are not covered under the definition of Consumer. As per the records, there is ample evidence to prove the fact that no treatment was rendered by Dr. Badyal to the deceased. Hence, when no service is rendered by Dr. Badyal to the deceased then the question regarding coverage of the deceased under the definition of consumer does not arise.
Learned counsel for the Insurance Company further stated that there is no cogent and convincing evidence in shape of document which proves the fact that Rs.20,000/- was paid by the attendants of Rajwinder to the Doctor. There is no slip produced on record by the complainants which works as an acknowledgment towards the payment of Rs.20,000/- to the hospital.
It was also argued by the learned counsel for the petitioner Insurance Company that the District Forum has observed that "inference is that first aid must have been taken from Dr. Ujjagar Singh as on that account they were taken to his hospital. This must have deteriorated the condition of the injured. In these circumstances the story of opposite party no.1 & 2 that the condition of the injured was highly critical, their treatment was beyond his capabilities and there was no proper facilities in the Hospital and on that account, opposite party No.2 gave bonafide opinion in the interest of the injured to remove them to some proper centre or higher centre (Multi Speciality Hospital) sounds to reason. This opinion was given immediately after they were brought to opposite party No.1 as it is clear from Ex.R-3 & Ex.R-6. Hence, the question of availing the services of opposite parties No.1 & 2 by the complainants for the treatment of Sandeep Singh for consideration does not arise." The learned counsel for the Insurance Company thus concluded that there was no deficiency of service on the part of opposite parties 1 and 2 towards deceased Sandeep or towards complainants. As no negligence is proved against opposite parties 1 and 2, there should be no question for opposite party No.3/Insurance Company to pay anything to the complainants.
On the other hand, learned counsel for the respondents/complainants stated that opposite party No.2 refused to give any treatment (within the first Aid) to Sandeep who was seriously injured in the accident and there was an urgent need to save his life. Clearly there was an emergency and the opposite party No.1 and opposite party No.2 should have given the basic treatment so that further treatment could have been taken at a higher hospital if required. The opposite party No.2 clearly refused to give any treatment without receiving Rs.20,000/- from the family members of the injured Sandeep. The family members assured him that they will pay by morning, however the opposite party No.2 did not agree and asked the complainants to take the patient to another higher hospital. Thus, the conduct of the opposite party No.2 was against the code of ethics for the medical practitioners and against the declaration of World Medical Association. The State Commission has referred to this declaration in its judgment which clearly states the rights of the patients and one right is to get the emergency treatment from any hospital/medical practitioner. The State Commission has also referred to the judgment of the Hon'ble Supreme Court in Pandit Parmanand Katara Vs. Union of India and others, AIR 1989 (3) SC 2039, wherein the Supreme Court has clearly observed that it is the duty of doctor to attend to the patient in emergency particularly in a case of accident. Even the private doctors have to conduct themselves accordingly and from this aspect, the patient under emergency brought to the hospital and doctor becomes a consumer and the doctor/hospital becomes a service provider. The death of the son of the complainants has occurred due to negligence and deficiency in service on the part of the opposite party No.1 and opposite party No.2 and therefore, the State Commission rightly awarded a compensation of Rs.15,00,000/- to the complainants. The complainants are not concerned whether the amount is paid by opposite party No.1 and opposite party No.2 or by opposite party No.3. The revision petition of opposite party No.3 is basically against the opposite party No.1 and opposite party No.2 as opposite party No.3 has no role in deciding the deficiency in service of opposite party No.1 and opposite party No.2 qua the deceased son of the complainants.
I have carefully considered the arguments advanced by the learned counsel for the parties and have perused the record. Though, it has been alleged that the treatment of the other injured Rajwinder was taken up by the opposite parties as the parents of Rajwinder gave Rs.20,000/- to start the treatment, no such admission either by Rajwinder or his parents has been filed, nor any receipt given by the opposite parties to Rajwinder has been produced by the complainants. As both the boys Sandeep and Rajwinder were injured and the opposite parties gave treatment to only Rajwinder and did not give any treatment to Sandeep, there has to be some reason for the same. When the condition of Sandeep was so critical that he died on the way to other higher hospital, it was the duty of the opposite party hospital and the doctor to have given some initial treatment so that his condition could have stabilised and then he could have been shifted to another hospital. The name of the opposite party hospital is 'Badyal Advance Bone Joint & Children Hospital' and the name of the hospital itself suggests that it was an advanced centre for treatment in respect of the bones. Thus, it cannot be believed that the hospital does not have the facility to give the initial treatment to an injured. It is the duty of the hospital and the doctor to treat the injured if the same is brought to the hospital after accident. The State Commission has rightly relied on the judgment of the Hon'ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others, (supra), wherein the Apex Court has held the following:-
"a scooterist was knocked down by a speeding car. Seeing the profusely bleed- ing scooterist, a person who was on the road picked up the injured and took him to the nearest hospital. The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital located some 20 kilometers away authorised to handle medico-legal cases. The samaritan carried the victim. But before he reached the hospital the patient succumbed to his injuries. In that set of circumstances in a petition under Article 32 the Court pertinently observed that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as a resuurection is beyond the capacity of man. Therefore, injured brought for medical treatment, should be instantaneously given medical aid to preserve life."
It is clear in the present case that opposite party hospital and the doctor refused to treat Sandeep, who was brought to that hospital after injury in a road accident and it was the duty of the doctor to have treated him atleast initially. Outright rejection of treatment cannot be supported by any standard, which is clear in the above observations of the Hon'ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others (supra).
The argument of the learned counsel for the petitioners that there was no privity of contract between the complainants and the opposite parties No.1 and 2 and therefore, present complaint cannot fall under the definition of the consumer disputes. In this regard, it is noted that the assertion of the complainants has been that they promised to pay Rs.20,000/- but by the next morning however, the same was not accepted by the opposite parties. The definition of 'consumer' under Section 2(1)(d) (ii) of the Consumer Protection Act, 1986 reads as under:-
"Consumer means any person who-
(ii) [hires or avails ] of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] [Explanation- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment]"
It is clear that if a person promises to pay the consideration for hiring or availing any service, he shall also fall in the definition of consumer, therefore, even if anything was not paid to the opposite parties by the complainants, the complainants will fall in the category of consumer particularly in the light of the judgment of the Hon'ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others (supra), wherein the duty has been cast upon the hospital and the doctor to give the treatment to injured person who is brought to them after accident.
Once the complainants are consumers even qua the opposite parties, the deficiency on the part of the opposite parties stands proved as they refused to give treatment to a person to whom they were duty bound to treat initially as per the judgment of the Hon'ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others (supra).
Coming to the question of compensation, as observed above that though it has been alleged that parents of Rajwinder paid Rs.20,000/- for his treatment and then treatment was started, however, no such proof has been filed in this regard. There is no statement given by the parents of Rawinder or any receipt for Rs.20,000/- has been filed, therefore, this allegation is not established, however, the opposite parties are guilty of deficiency in service for not treating Sandeep, who was an injured person brought before them for treatment, in the light of the judgment of the Hon'ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others (supra). In these circumstances, a compensation of Rs.15,00,000/- awarded by the State Commission seems on a higher side and the same is reduced to Rs.10,00,000/- (rupees ten lakhs) to be paid to the complainants and revision petition no.2133 of 2013 is accordingly disposed of.
So far as the revision petition No.2354 of 2012 filed by the Insurance Company is concerned, learned counsel stated that no negligence can be attributed to the opposite party hospital and doctor for not treating Sandeep son of the complainants as they referred the injured Sandeep to a higher hospital where treatment could have been given. This action of the hospital and the doctor is in consonance with the direction by Hon'ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others (supra). No negligence can be attributed to a doctor or hospital without any evidence. No evidence has been filed in the present case that the treatment of patient was refused as the parents of the patient could not deposit Rs.20,000/- with the hospital for the treatment. Learned counsel has further argued that the State Commission has granted huge compensation of Rs.15,00,000/- without any basis and without any negligence on the part of the doctor and the hospital. It was further argued that there was no treatment given by the doctor and the hospital, the deficiency in service cannot be alleged for negligence in treatment. The arguments have been advanced by the learned counsel for the respondent No.3/Insurance Company because if the negligence is not established against the insured doctor and/or the hospital, the liability of the Insurance Company would not be there. But the fact is that the liability of the appellants in Appeal No.2133 of 2012 has already been fixed at Rs.10,00,000/- and therefore, the arguments of learned counsel are of no avail.
Based on the above discussion, the Revision Petition No.2133 of 2012 is partly accepted and the order dated 29.02.2012 of the State Commission is modified to the extent that the appellants/opposite parties shall pay a compensation of Rs.10 lacs instead of Rs.15 lacs as awarded by the State Commission. Rest of the order of the State Commission remains unchanged. Revision Petition No.2354 of 2012 is dismissed.