SURESH CHANDRA vs Kailash Kabra

THE Petitioner preferred the present Revision Petition against the impugned order of the State Consumer Disputes Redressal Commission (in short, ''State Commission ''), Jaipur, Rajasthan, whereby the State Commission dismissed the First Appeal No. 1298 of 2011 filed by the Petitioner and affirmed the order passed by the District Consumer Disputes Redressal Forum (in short, ''District Forum ''), Bhilwara, Rajasthan.

THE relevant facts in this revision petition are that, on 15.09.2006, the complainant, Mr. Suresh Chandra, took his son Mangalam, aged 15 years (herein referred as, a ''''patient '''') for treatment of kidney stone in Krishna Hospital, Bhilwada. The Complainant deposited the fee of Rs.5,000/ - and admitted his son. On that day, OP -1, Dr. Kailash Kabra was not present and the Complainant was informed by the subordinate staff and employee of OP -1, that he had gone out, for some work. The stone was crushed into pieces the stones of 13 mm, prescribed medicines and called for follow up and regular check -up. Thereupon, OP -1 advised the Complainant to come to Bhilwada clinic, on 27.11.2006, along with all the papers of treatment of his son. Sonography of his son was taken and OP -1 stated that it was normal and assured the Complainant that his son would recover soon, but there was no improvement in the condition of the patient. Thereafter, the patient was taken to Kidney Line Health Care Hospital, Ahmedabad on, 8.1.2007, for treatment and spent a sum of Rs.85,993/ -. The Complainant alleged that OP -1 issued misleading advertisements and conducted the operation of his son, in a haste manner, by lithotripsy which amounts to gross medical negligence. Hence, filed a complaint before the District Forum, and claimed a sum of Rs.10,00,000/ - as compensation, for mental agony and physical harassment and Rs.1,50,000/ - towards monetary loss. The District Forum partly allowed the complaint and held OP Nos. 1 to 4, liable for medical negligence and awarded a lump -sum amount of Rs.1,11,000/ -, on the basis of contractual liability (Indemnity). The District Forum directed OP No.6, M/s Bajaj Alliance General Insurance Co. Ltd., to pay the awarded amount of Rs.1,11,000/ - to the complainant.

AGGRIEVED by the order of District Forum, the complainant filed First appeal before the State Commission, on the ground that the compensation awarded by it is on lesser side, and for not awarding any compensation for future prospects of his son, who was a bright student.

THE State Commission, in a casual manner dismissed the appeal and passed a non -speaking order. Hence, the Petitioner/Complainant filed this revision petition. We have heard the Counsel for the both parties, perused the medical records and evidence placed on file. OPs -1 to 4 were proceeded ex -parte. We have requisitioned the complete record of the District Forum to ascertain the details of medical treatment, given to Mangalam (Patient). We have perused the treatment details given by Dr. Kailash Kabra of Krishna Hospital, dated 15.09.2006, which clearly mention that a stone of 13mm present in left Renal Pelvis was completely broken by lithotripsy treatment. The ultrasound, report dated 27.11.2006 shows that left kidney was mild hydro -nephrosis with internal echoes of 8 mm calculus in mid pole and 5 mm in lower pole region and the impression given was, Left Pyo -nephrosis with Renal Calculi.

THEREAFTER , complainant went to Kidney Line Healthcare, Ahmedabad and took further treatment for his son, from Dr. Shailesh Shah. The Discharge Summary dated 11.01.2007, issued by Kidney Line Healthcare, Ahmedabad, clearly mentions as under: - ''''H/O ESWL done at Krishna Hospital at Bhilwada (Dr. Kabra) for left Renal Pelvis stone of 13mm X 10 mm (by Dr. Kabra) after that has again pain so re -consulted at Krishna Hospital they advised medicines and injection for that after doing Sonography which revealed pyonephrosis. Under the heading of Past Operation/Medication : ''''ESSWWL Left side done in 15 September at Krishna Hospital, Bhilwada without doing IVU. '''' Final Diagnosis a) Post ESWL Obstruction with poorly functioning kidney complication of ESWL as IVP is not done primarily. b) Left upper ureteric with renal pelvis matrix stone. c) Chronic follicular cystitis.

THEREFORE , we are of considered view that, the District Forum rightly held Dr. Kailash Kabra (OP -1) liable for medical negligence and awarded lump -sum compensation for Rs.1,11,000/ - which is to be paid by OP -6.The counsel for OP -6 has admitted to have issued the Professional Indemnity Insurance to OPs 1 to 4 that Krishna Hospital for Rs.10,00,000/ - for the period from 19.02.2006 to 17.02.2007. He further stated that five claims have been registered during the said period of the policy, and as such, the liability of the insurance company, under the agreement, is limited only to the extent of a limited amount, and hence, the Complainant is not at all entitled to the claim of Rs.1,50,000/ -. The Counsel for OP -6, further contended that in the light of the principles laid down by the Hon ''ble Supreme Court in Dr. Jacob Mathew Vs. State of Punjab, CPJ 2005(111) SC, the complaint is liable to be dismissed. This is a peculiar case. The Petitioner/Complainant is seeking for enhancement of compensation, while OP -6, insurance company, wants to skip off the entire quantum of liability, on the ground that Five claims have been registered, during the said policy period.

WE have given a thoughtful consideration on both the points. The complainant ''s son was a young and bright student; he lost his academic year for 11th standard because of negligence of OP Nos. 1 -4. He further suffered pyonephrosis and renal stones. The hospital records from Kidney line Centre, Ahmedabad clearly establish that the complainant visited Ahmedabad for regular follow -up treatment investigations. Hence, we are of considered view that the compensation awarded by District Forum is not just and proper. Accordingly, we enhance the total compensation to a sum of Rs.4 lacs. Secondly, we are not convinced with the arguments advanced by Counsel for OP -6 about restricted indemnity liability. Though the Counsel on behalf of Insurance Company contended that, five claims were registered against the said hospital/doctor, OP -6, has not produced any cogent evidence to prove the same. We are not aware, whether, OP -6 has already paid or is yet to pay the indemnified amount, in all the five claims? Therefore, we fasten the entire liability of this case upon the Insurance Company to pay the awarded amount.

UPON entirety of the forgoing discussion, we allow the revision petition. The OPs 1 -4 are held liable for medical negligence. Consequently, the OPs 1 -4 are covered under Professional Indemnity from the insurance company (OP -6). Therefore, the OP -6 is directed to pay Rs.4 lacs to the complainant, within 90 days from the date of receipt of this order, otherwise, it will carry interest @ 9% p.a., till its realization.