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Judgment
Heard Mr. Kshitij Srivastava, Advocate, for the petitioner.
Above revision has been filed against the order of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, dated 31.08.2021, passed in First Appeal No.34 of 2015 (arising from the order of District Consumer Disputes Redressal Forum, Chennai (North), dated 07.01.2014 passed in CC/38/2004), whereby District Forum has allowed the complaint and directed the petitioner (opposite party-1) to pay Rs.500000/- as the compensation and Rs.5000/- as litigation cost and State Commission has dismissed the appeal.
The office has reported 387 days in filing the revision. The petitioner has filed IA/12175/2022, for condoning the delay. Subject to objection of the respondent, delay in filing the revision is condoned and the revision was heard on admission.
A. Sajjitha Parveen (respondent-1) filed CC/38/2004, for directing the opposite parties jointly and severally pay (i) Rs.100000/-, as compensation for mental agony; (ii) Rs.100000/-, for loss of estate; (iii) Rs.100000/-, for loss of love and affection; (iv) Rs.100000/-, for pain and suffering underwent by her deceased son, herself and her family members: (v) Rs.600000/-, for loss of future pecuniary benefits (vi) Litigation costs; and (vii) Any other relief, which is deemed fit and proper in the facts and circumstances of the case. The complainant stated that she was an employee of Isex Fashions Private Limited, 6, M.G.R. Salat Palavakkam, Chennai. Employee’s State Insurance Corporation (for short the corporation) was a statutory authority, constituted under Employee’s State Insurance Act, 1948. Under its welfare scheme, the corporation established and run State Insurance Dispensary, Adayar, Thiruvanmiyur, Chennai, for providing free medical aid to the members and their family, enrolled under the scheme. Dr. Karthikeyan (opposite party-2) was posted as Medical Officer at above dispensary. Under Labour Laws, Rs.35/- per month used to be deducted from the wages of the complainant towards subscription of the membership of the scheme by her employer and deposited with the corporation. The complainant was allotted Code No.51-57576-18 and Insurance No.13329270/-. Mohammed Asiq (aged about 5 years), son of the complainant suffered from fever, cough, cold and vomiting on 18.06.2003. The complainant went to above dispensary on 18.06.2003 at 7:30 hours for treatment of her son. Dr. Karthikeyan examined her son Mohammed Asiq and prescribed medicines, which were collected by her from the pharmacy of the dispensary, showing the prescription. Dr. Karthikeyan asked the petitioner to administer the medicines to her son continuously for one week and then come for review, if necessary. As per instructions, the complainant was administering the medicines continuously. Her son had become listless and serious on 22.06.2003. The complainant then rushed to S.P. Clinic, Injambakkam, a private doctor, who examined her son, informed that there was contra indication of the medicines and referred for Children Hospital. The complainant admitted her son at Children Hospital, Egmore on 22.06.2003. Treating doctor asked the complainant to show the medicines, which she was administering her son. The complainant showed the remaining medicines to the doctor, who on examination, informed that her son had fainted due to use of those harmful medicines. During treatment in Children Hospital, Mohammed Asiq died on 25.06.2003. In post mortem report also cause of death was mentioned as “due to consumption of wrong medication”. The complainant lodged FIR (Crime No.704/2003) at Police Station Thiuvanmiyur. The complainant had one son and one daughter. Due to death of her only son, she was being haunted by nightmares and unbearable sorrow as the medicines were given by her own hand to her son. Her entire family were suffering from mental agony. She gave a legal notices dated 09.09.2003 and 10.10.2003 to the opposite parties. Thereafter filed this complaint on 18.01.2004.
The petitioner filed written version in the complaint and contested the case. The petitioner stated by that Dr. Karthikeyan was under direct control of the Director of Medical Services, Employee’s State Insurance Corporation and he had nothing to do with. Section 75 of Employee’s State Insurance Act, 1948 provides a complete forum for redressal of grievances and the complaint was not maintainable. Dr. Karthikeyan (opposite party-2) filed his separate written version and stated that he had attended Mohammed Asiq (minor son of the complainant) on 18.06.2003 at 7:30 hours at Employees State Insurance Dispensary, Adayar, Thiruvanmiyur, Chennai, where he was posted as Medical Officer. Mohammed Asiq was suffering from fever, cough and cold. He prescribed medicines (i) Arthobid syrup, (ii) Tixylix syrup and (iii) Sparmax tablets, intended for paediatric use. The complainant was instructed dose and manner of use of medicines and advised for review after two days. The complainant collected the medicines from the pharmacy of the dispensary. Thereafter, she never came back to dispensary. The complainant had lodged FIR against him, which was under investigation. He denied the allegation of prescribing wrong and harmful medicines or committing negligence in treatment of Mohammed Asiq.
Before the District Consumer Forum, the complainant filed her Affidavit of Evidence and adduced documentary evidence. She examined Dr. P. Ramachandran, Additional Professor (Paediatrician), Children Hospital, Chennai, who stated that the complainant had shown remaining medicines on 23.06.2003, which she was administering to her son Mohammed Asiq before his admission in Children Hospital. Those medicines were (i) Gliben Climide-5mg, (ii) Metaformin 500mg, (iii) Isosoredit 500mg (iv) syrup prelyx and (v) syrup Nimisulide and informed that those medicines were supplied to her from pharmacy of the dispensary. Those medicines were meant for diabetic and cardiac problem. Due to contra indication of those medicine, the child fainted and died later on.
District Consumer Forum, by its judgment dated 07.01.2014, relying upon statement of Dr. P. Ramachandran held that Mohammed Asiq died due to wrong medication. Even if negligence was committed by Pharmacist of the dispensary, Dr. Karthikeyan would be liable for it. On these findings the complaint was allowed and order as stated above was passed. The petitioner filed Appeal No.34 of 2015, from the aforesaid order. State Commission, vide judgment dated 31.08.2021, dismissed the appeal, holding that from evidence on record, negligence on the part of opposite party-2 was proved. Hence this revision has been filed by opposite party-1.
We have considered the arguments of the counsel for the petitioner and examined the record. So far as arguments of maintainability of the complaint is concerned, Supreme Court in Kishore Lal Vs. Chairman, Employee’s State Insurance Corporation, (2007) 4 SCC 579, held that dispensaries run by Employee’s State Insurance Corporation provide medical service and falls within the purview of consumer fora and the complainant is maintainable. Supreme Court in Canara Bank Vs. Canara Sales Corporation, (1987) 2 SCC 666 and Pradeep Kumar Vs. Post Master General, (2022) 6 SCC 351, held that employer is vicariously liable for the act of its employees. Employee’s State Insurance Corporation established and run State Insurance Dispensary, Adayar, Thiruvanmiyur, Chennai, for providing free medical aid to the members and their family, enrolled under the scheme, where Dr. Karthikeyan (opposite party-2) was posted as Medical Officer and wrong medicines were supplied to the complainant from the pharmacy of this dispensary. Therefore, the corporation is vicariously liable for the negligence of the doctor and pharmacist.
Both the commission below have concurrently held that wrong medicines were supplied to the complainant and due to use of that medicines son of the complainant died. Findings of fact was based upon evidence of an expert doctor and do not suffer from any illegality. Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Company Ltd. (2011) 11 SCC 269 and Loudres Society Snehanjali Girls Hostel Vs. H & R Johson (India) Ltd. (2016) 8 SCC 286, held that National Commission has no jurisdiction to set aside concurrent findings of facts recorded by two foras below, in exercise of revisional jurisdiction. We do not see any jurisdictional error in the impugned orders passed. Nor do we see any such material irregularity or element of perversity which may be said to have vitiated the verdict or resulted in miscarriage of justice. We see no reason to take a different view in the matter or to interfere in the concurrent findings.
O R D E R
In view of the aforesaid discussion, the revision petition has no merit and is dismissed.