R.P.SHARMA vs HANDA NURSING HOME

THE present appeal, filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 26.2.2003, passed by District Forum (North West), Shalimar Bagh, Delhi, in Complaint Case No. 3788/2001 - entitled Shri R.P. Sharma v. Handa Nursing Home & Anr.

THE facts, relevant for the disposal of the present appeal, lie in a narrow compass. THE appellant, Shri R.P. Sharma, had filed a complaint under Section 12 of the Act, before the District Forum, against the respondents, alleging medical negligence/deficiency in service on their part. In the complaint, filed by the appellant, for the alleged deficiency in service/negligence, the appellant had claimed a compensation of Rs. 2,00,000/- for mental and physical pain, a sum of Rs. 90,000/- towards medical expenses, and another sum of Rs. 5,500/- as cost of litigation. The claim of the appellant in the District Forum was resisted by the respondents. In the reply/written version, filed on behalf of the respondents, it was stated that prior to the admission of the appellant in Handa Nursing Home (respondent No. 1), the appellant was treated in Hemraj Jain Nursing Home and as he was not fully cured by the doctors in Hemraj Jain Nursing Home, he was admitted in Handa Nursing Home (respondent No. 1), on 29th March, 2001, in a serious condition. It was stated that on admission the appellant was diagnosed as a case of urinary fastula. It was stated that the appellant was duly informed that the treatment would take long time and three weeks hospitalization was required for treating the appellant. It was stated that the appellant was admitted in Handa Nursing Home (respondent No. 1), after explaining full facts. It was stated that necessary investigations were carried out and on 30th March, 2001 DJ Stent was placed and the drainage tube, which was not in proper position, was put in proper position. It was stated that constant monitoring was done and necessary medical treatment, as required, was provided to the appellant so as to cure him completely. It was also stated that considering the economic condition of the appellant and the fact that the appellant was in the hospital of Hemraj Jain Nursing Home for a long period, the appellant was not charged for the change of catheter and even for the room and nursing charges from 24th April, 2001 to 26th April, 2001, i.e. the period the appellant stayed in the nursing home of respondent No. 1. The allegation of negligence/deficiency in service was specifically denied.

The learned District Forum, vide impugned order, has held that there was no negligence or carelessness on the part of the respondents and on the basis of the above finding, has dismissed the complaint filed by the appellant.

FEELING aggrieved, the appellant has preferred the present appeal under Section 15 of the Act. We have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. The Hon''ble National Commission in case Calcutta Medical Research Institute v. Bimalesh Chatterjee & Ors., I (1999) CPJ 13 (NC), has held that in the case of medical negligence the onus of proving negligence and resultant deficiency in service lies on the complainant. In a subsequent decision, in case Kanhaiya Kumar Singh v. M/s. Park Medicare and Research Centre, III (1999) CPJ 9 (NC), the Hon''ble National Commission has held that in the case of medical negligence deficiency in service has to be established and the same cannot be presumed.

THUS in the present case, the onus to prove negligence/deficiency in service lay heavily on the appellant. On the basis of material on record, it is apparent that the appellant initially was treated and operated upon in Hemraj Jain Nursing Home and when he was not fully cured and complications developed, he was shifted in a serious condition to Handa Nursing Home (respondent No. 1), for treatment. On the basis of material on record, it is further apparent that in the given facts, there was no negligence/deficiency in service on the part of the respondents. In other words, the appellant has miserably failed to prove negligence/deficiency in service on the part of the respondents as per settled law. In our opinion, the order being impugned in the present proceedings is a well reasoned order which suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant is, therefore, devoid of substance. The same merits dismissal. Accordingly the same is dismissed in limine with no order as to costs. Appeal dismissed.