Full Judgment
I. Venkatanarayana, President:
1. This is a complaint filed under Section 17(a)(i) of Consumer Protection Act, 1986 praying to direct the opposite parties jointly and severally to pay Rs. 6,00,000 towards compensation for loss of life of complainants wife and child and mental agony suffered by him and also to award costs of this complaint.
2. The brief facts as set out in the complaint are that the wife of complainant Smt. Gangadhari Sulochana aged about 20 years was brought by her mother Balamani on 30.12.2000 to Kavitha Nursing Home belonging to opposite party No. 1 (in short OP 2) at Valigonda and that Dr. Dasharatha, opposite party No. 1 examined her and asked Sulochanas mother to bring her on the next day. On 31.12.2000 Balamani, mother of Sulochana again took her to opposite party No. 2 hospital since she had pains of delivery. The opposite party No. 1 admitted Smt. Sulochana in his Kavitha Nursing Home and on 1.1.2001 hurriedly took her to operation theatre and conducted a surgery on Sulochana and took out a still born child from her womb with the assistance of Dr. B. P. Sagar (OP3).
3. It is alleged by the complainant that Dr. Dasharatha (OP1) is not qualified to conduct any surgery and that OP2 Kavitha Nursing Home is not equipped with necessary infrastructural facilities. In spite of that OPl conducted the surgery without necessary instruments and other facilities in OP2 Nursing Home endangering the lives of Smt. Sulochana and her child. Due to negligent acts of OPs 1 and 3 who are unqualified, the male child of Smt. Sulochana died in the womb itself.
4. It is further alleged that Smt. Sulochana on whom the surgery was conducted by OPs 1 and 3 negligently without proper care and proper instruments, she was driven to the lap of death. Sensing the danger to her life both Dr. Dasharatha (OP1) and Dr. B. Pradeep Sagar (OP3) hurriedly arranged a jeep and took dying Smt. Sulochana to Nikhil Hospital at Dilsukhnagar, Hyderabad. But she died on the way itself and the doctors at Nikhil Hospital declared her brought dead. Thus both the OPs 1 and 3 are culpably negligent in attending on Smt. Sulochana and responsible for the death of Smt. Sulochana and her male child in the womb. Complainant lost his companion and also love and affection. He also lost the child. He incurred huge expenditure in this process. The OPs have not given any death summary and all the records relating to this case were destroyed.
5. It is contended by the complainant that there is no response to the legal notice got issued by him to OPs 1 to 3 to compensate the loss of life of his wife and son and also to mitigate the mental agony suffered by him.
6. Hence, this complaint praying to direct the opposite parties 1 to 3 to pay compensation of Rs. 6,00,000 for deficiency of service on their part and also award costs for the expenses incurred by him.
7. Opposite parties 1 and 2 (in short OPs 1 and 2) filed counter denying the allegations of the complainant. It is contended by OPs 1 and 2 that they do not know the complainant since he never turned up to OPs 1and 2 at any point of time. It is admitted that on 1.1.2001 one pregnant lady came to the clinic with a complaint that she is suffering from bleeding and immediately by seeing her condition, OPl advised her to go to Hyderabad to join in any hospital and at the request of the attendant of said patient a jeep was arranged and she was shifted to Hyderabad by the attendant i.e., mother of the patient. Thereafter, the OPs 1 and 2 do not know anything about the said patient. But surprisingly after three to four days one Police Constable came and intimated that a case was booked against OPs alleging that a surgery was done by this opposite party. OP1 reiterates that neither OP1 nor OP3 conducted any surgery on the deceased patient and as already stated that he advised her to go to Hyderabad for any hospital and it is unimaginable that any RMP Doctor would conduct surgery.
8. It is denied by OP1 that he conducted a surgery on deceased patient Smt. Sulochana and that one Mr. Sukumar claiming to be the husband of the deceased never visited the opposite parties. Therefore, they cannot identify him. It is contended by OPl that at the instigation of rival doctors, the Police booked a case in C.C. No. 100/2001 which was finally dismissed by the Court of Judicial First Class Magistrate, Rammannapet and acquitted the accused who are the opposite parties herein. Post-mortem report reveals that deceased died due to Haemorrhagic shock i.e., heavy bleeding. As a matter of fact complainant herein did not give any complaint and police booked a case in C.C. No. 100/2001 on the basis of false information. Therefore, it is very clear that the OPs neither conducted surgery nor attended any treatment on deceased except advising the patient to go to a big hospital in Hyderabad. The complainant has not hired their services nor paid any consideration. Hence, the complaint itself is not maintainable under Consumer Protection Act.
9. It is contended by the OPs 1 and 2 that when they have not treated the patient nor conducted any surgery the question of negligence on their part does not arise since they have not rendered any service nor charged any consideration for the alleged service.
10. Further, the opposite parties 1 and 2 denied the service of legal notice and contended that there is no consumer relationship with complainant nor charged any amount nor rendered any service nor conducted any surgery. Therefore, the complainant is not entitled to any amount. This complaint is filed on the ill-advice of local rivals only to harass the opposite parties for wrongful gain. It is prayed to dismiss the complaint with costs.
11. Opposite party No. 3 (in short OP3) filed counter denying the complaint averments. OP3 is not aware of complainant or his wife. But surprisingly Dr. Dasharatha (OPl) intimated that a case has been booked against OPs alleging that a surgery was conducted by this opposite party. Subsequently the said case was ended in acquittal. It is submitted by OP3 that he did not conduct any surgery on the deceased patient nor seen the complainant or his deceased wife at any point of time.
12. It is reiterated by OP3 that he never conducted any surgery on the said patient but it is admitted by OP3 that Police booked a case in C.C. No. 100/2001 which was finally dismissed by the Court of Judicial First Class Magistrate, Rammannapet and acquitted the accused who are the opposite parties herein. The Post-mortem report discloses that the patient died due to haemorrhagic shock i.e., heavy bleeding. Therefore the First Class Magistrate also verified the documents filed by the police and finally dismissed the case. It is further contended by the OP3 that when he did not treat the deceased, the question of deficiency of service does not arise. Hence, this complaint itself is not maintainable under Consumer Protection Act.
13. Complainant Sri G. Sukumar examined himself as PW1 and Dr. Dasharath (OP1) and Dr. B.P. Sagar (OP3) are examined as RWs 1 and 2 on behalf of opposite parties. Exs. Al to A19 on behalf of complainant and Exs. B1 to B14 on behalf of opposite Parties are marked. Heard the arguments of the respective Counsel.
Both the parties filed their written argument.
14. The only question that falls for consideration is, whether opposite parties conducted surgey on the deceased patient Smt. Sulochana? If so, whether there is any deficiency of service or negligence on the part of opposite parties? If so, to what relief the complainant is entitled to?
15. For the purpose of establishing medical negligence and deficiency the complainant i.e., husband of late G. Sulochana examined himself as PW1. In brief he deposed that he took his wife Smt. G. Sulochana in December, 2000 to OPl who gave the expected delivery date around 27.12.2000 and collected consultation fees and asked them to come to his Nursing Home âKavitha Nursing Home. On 30.12.2000 the complainants wife was taken to OP2 Nursing Home and they were asked to come on 31.12.2000 and accordingly she was admitted in OP2 Nursing Home. On 1.1.2001 he found that his wife is not in a position to have normal delivery and at around 3.00 p.m. she was taken to operation theatre for conducting caesarean surgery. While OPl was conducting surgery OP3 joined him. Some time later they came out of theatre and informed that a still-born baby was born and the baby expired in the womb of the mother and the condition of the mother is serious. Immediately OPl telephoned and arranged a jeep with his expenses and sent them to Nikhil Hospital, Hyderabad. The Compounder K. Lalaiah accompanied them. At Hyderabad in Nikhil Hospital they pronounced that she was brought dead and they took back the dead body of Smt. G. Sulochana to Valigonda in the same jeep.
16. Ex. A1 is the news item published in Vartha Nalgonda Edition dated 2.1.2001 wherein it is stated that family members of Smt. G. Sulochana staged a dharna in front of OP2 Nursing Home Demanding compensation for the death of mother and child while conducting operation on Smt. G. Sulochana who was admitted to OP2 Nursing Home for delivery in the hands of OP 1.
17. Ex. A2 is also a news item published in âEenaduâ Telugu daily in Nalgonda Edition wherein it is reported that a case has been registered against OPl and OP3 doctors for the death of Smt. G. Sulochana and that all the RMPs were warned already not to conduct surgeries and that post-mortem was conducted to dead body at Rammannapet Government Hospital.
18. Ex. A3 is the First Information Report of S.I. of Police, Valigonda, Nalgonda Dist. relating to Crime No. 94/2002 under Section 304 of IPC lodged by one Ilapaka Swamy alleging that OP1 has been treating her wife for the past seven months and when she complained of labour pains she was admitted to the hospital belonging to OP1 on 16. 12.2002 at 8.00 a.m. and that OPl treated her since morning till 3.00 p.m. and later informed that the patient became unconscious and that the still born baby died in the womb. As the condition of the patient is out of his hands, OPl by arranging Oxygen asked them to take the patient to Hyderabad. She died on the way to Hyderabad. It is complained that action may be taken against OPl for death of still born baby and the patient on account of his negligent treatment.
19. Ex. A4 is a news item published on 18.12.2005 in Eenadu, Nalgonda Edition stating that one Ilapaka Lakshamma (30) a pregnant died on the way to Hyderabad due to negligent treatment of OP 1 Doctor and a case has been registered against him.
20. Ex. A5 is the charge-sheet and Ex. A6 is the Case Diary in C.C. No. 183/2004. Ex. A7 is the post-mortem report of late Smt. G. Sulochana,
21. Ex. A8 is the First Information Report No. 2/2001 dated 2.1.2001 of Valigonda P.S., Nalgonda Dist.
22. Ex. A9 is the complaint given by Dr. Dasharath (OPl) to S.I. of Police, Valigonda, P.S. stating that he is an RMP Doctor at Valigonda and on 31.12.2000 at about 10.00 a.m. Gangadhari Balamani brought her pregnant daughter G. Sulochana to his clinic and on examination he asked them to admit her in the Nursing Home as the delivery date is approaching and they left the hospital and returned back and admitted her on 31.12.2000 at 10.30 p.m. in OP2 Nursing Home. On 1.1.2001 as no delivery has taken place, OP3 at about 2.00 p.m. conducted an operation on Smt. G. Sulochana and found that still born baby died in the womb and due to that the condition of the patient became serious and immediately they rushed Smt. G. Sulochana to Nikhil Hospital at Hyderabad where the Doctors pronounced her brought dead. In the above incident, other than the family members as shown in the complaint ransacked the clinic and house of Dr. Dasharatha and damaged the property worth Rs. 2.00 lakh.
23. Ex. A10 is the Charge-sheet in C.C. No. 56/2001.
24. Ex. A11 is the Panchanama about the damage caused to the property belonging to Dr. Dasharatha (OPl) on learning that he is responsible for cause of death of G. Sulochana.
25. Ex. A12 is the case diary. Exs. A13 to A17 are statements of witnesses narrating the incident and damage caused to the house and property of Dr. Dasharatha.
26. Ex. A18 is the deposition of Bodige Dasharatha before the Judicial Magistrate of First Class, Rammannapet in C.C. No. 56/2001 wherein he stated that he compromised the case with the accused outside the Court.
27. Ex. A19 is the judgment in C.C. No. 56/2001 on the file of Judicial Magistrate of First Class, Rammannapet.
28. The complainant has filed Ex. A20 FIR dated 1.1.2001. This is a complaint given by mother-in-law of the complainant and mother of late G. Sulochana. In the complaint it is stated that she brought her daughter to delivery on 30.12. 2000 to OPl and an opinion was given that all is well and she was admitted in OP2 Kavitha Nursing Home and on the afternoon of 1.1.2001 OP1 took late G. Sulochana to operation theatre and subsequently she was informed that still-born baby boy is died in the womb of the mother and her condition is serious and he telephoned and brought a jeep asking them to go to Hyderabad. The Doctors at Nikhil Hospital, Hyderabad have pronounced her as brought dead.
29. Ex. A21 is the charge-sheet filed by Police Station, Valigonda, Nalgonda District in Crime No. 1/2001 under Section 304 of IPC. Investigation was done by S.I. of Police who recorded the statements of mother-in-law of the complainant and he also recorded the statements of LW2-Gangadhari Valiah, LW-3 Gangadhari Sudhakar, LW-4 Gangadhari Sukumar, LW5-Gangadhari Ramulu, LW-6 Boddupally Andalu, LW7-Khammapati Lalaiah (Componder), LW8-Naagilla Eswaramma (Mid-wife) and LW9-Kasula Upender who is the driver.
30. In the presence of the mediators, the S.I. of Police seized the theatre and the surgical kit used for conducting the surgery and inquest was held on the dead body in the presence of mediators LW10-Boddupally Papaiah, LW-11 Rachakonda Mallesh and LW-12 Thanduru Laxmamma and sent the dead body to Government Community Health Centre, Ramnannapet where the LW-13 Dr. S. N. Madhu and LW-14 Dr. T. Narsinga Rao, duty Medical Officers jointly conducted the autopsy and opined that the death of Smt. G. Sulochana was due to haemorrhagic shock.
31. On 18.1.2001 OPl was arrested and produced before the Court for judicial custody. The investigation discloses that the OPl Dr. Dasharatha is a Private Medical Practitioner and established OP2 Kavitha Nursing Home and that he is running the hospital without any medical knowledge and without any degree for conducting surgery.
32. OP1 takes the help of OP3 in conducting the surgeries, it is also found that on 1.1.2001 at about 3.00 p.m. OP1 took late Smt. G. Sulochana into the operation theatre and started conducting surgery on her and in the meanwhile OP3 joined him who supervised the caesarean surgery and the surgery resulted in complications and it was found that the still-born child had already died in the womb. OPs 1 and 3 with a view to escape from the liability of their negligence have hurriedly arranged a jeep and LW7- K. Laliah, Compounder has accompanied them to the hospital at Hyderabad. The entire investigation established that late G. Sulochana died on account of surgery conducted by OPs 1 and 3 and she died of haemorrhagic shock and Charge-sheet was filed under Section 304 of I.P.C. read with Section 34, IPC.
33. Ex. A22 is Panchanama, wherein punch witnesses have stated that OPs 1 and 3 performed the operation and still-born baby boy died in the womb of Smt. G. Sulochana and as her condition was serious she was taken to Nikhil Hospital, Hyderabad wherein she was pronounced brought dead and the dead body was brought back to the village.
34. Ex. A23 is post mortem report which established that caesarean operation was performed on late G Sulochana and sutures were stitched and the cause of death was due to haemorrhagic shock.
35. Ex. A24 is statement of mother-in-law of the complainant recorded by S.I. of Police about the operation conducted by OPs 1 and 3.
36. Ex. A25 is statement of brother-in-law of the complainant. Ex. A26 is the statement of complainant recorded by S.I. of Police. Ex. A27 is the statement of neighbour Boddupalli Andallu who visited the hospital and speaks about the operation and the death of child in the womb and subsequently the mother-in-law of the complainant and others along with Compounder took the patient Smt. G. Sulochana to Hyderabad as her condition is stated to be serious.
37. Ex. A28 is an important statement given by the Kammampati Lalaiah, Compounder who works under OPl. He clearly and specifically states that late Smt. G. Sulochana was taken to the operation theatre and subsequently OP3 has joined and that baby boy died in the womb of late Smt. G. Sulochana and then OPl procured a jeep and sent them to Nikhil Hospital, Hyderabad where the Doctors of the hospital pronounced her brought dead. He also states that the Doctor has not conducted the blood test and there were no proper medicines and no equipment in the operation theatre.
38. Ex. A29 is the statement of mid-wife Smt. Nagilla Iswaramma who speaks about the incident and death of Smt. G. Sulochana and the operation performed by OPs 1 and 3. Ex. A30 is the statement of Driver of the jeep who speaks about taking the wife of the complainant Smt. G. Sulochana to Nikhil Hospital, Hyderabad where she was pronounced brought dead.
39. Ex. A31 is the legal notice got issued by the complainant calling upon the OPs 1 and 3 to pay compensation. Ex. A32 is the acknowledgements. Ex. A33 is the wedding invitation. Ex. A34 is a news item in âEenaduâ daily wherein it is reported that a criminal case has been filed against OPs 1 and 3. Ex. A35 is the FIR filed by one Iilapaka Swamy against OPl stating that his wife who has been admitted in the OPl hospital on 16.12.2002 after treating since morning informed that there was still-born baby in the womb and he was asked lo take the patient to Hyderabad with Oxygen and she died on the way to Hyderabad. Ex. A36 is a news item published in âEenadu, Telugu daily describing that the neighbours of I. Swamy staged Dharna in front of OP2 hospital.
40. As against this voluminous evidence opposite parties have totally denied having conducted any surgery and having treated late Smt. G. Sulochana, wife of the complainant. It is their contention that a pregnant lady came to their Nursing Home suffering from bleeding and on seeing her condition he has arranged a jeep and sent them to Hyderabad along with an attendant. In short they reiterate that neither OPl nor OP3 conducted any surgery on the deceased patient and advised them to go to Hyderabad.
41. The opposite parties have relied on Ex. Bl dated 30.4.2002 wherein OPs 1 and 3 have been acquitted. Prosecution witnesses have been declared as hostile and only PW11 who is running a medical shop has clearly stated that OPl and OP3 have conducted the operation and he was asked to take Smt. G. Sulochana along with Compounder to Nikhil Hospital, Hyderabad.
42. Ex. B2 is the statement of mother-in-law of the complainant who states that she cannot give the name of the hospital at Hyderabad and that her daughter underwent surgery and immediately after surgery she died. Opposite parties relied on the statement of mother-in-law of complainant for the purpose of contending that they have not treated the complainants wife.
43. Ex- B3 is the certificate of OP3 that he has obtained MBBS Degree from Andhra University. Ex. B4 is also a certificate authorising him to practise. It is also on record that his original name is Badavath Punnaiah, S/o. B. D. Naik, (M.S. General), Civil Assistant Surgeon and subsequently he changed his name to Badvath Pradeep Sagar (Ex. B5). Ex. B6 is the Internee Certificate issued by Government General Hospital, Guntur. Ex. B7 is the certificate of change of name. Ex. B8 is the proceedings of the Vice-Chancellor, Nagarjuna University, Guntur recognising the change in name from Badavath Punnaiah to Badavath Pradeep Sagar. Ex. B9 is the Degree of Master of Surgery issued by Nagarjuna University that he passed General Surgery. Ex. B10 is the certificate recognising him as Life Member of A.P. Private Hospitals and Nursing Homes Association. Ex. B11 is the proceedings of Government of India, Ministry of Health and Family Welfare. Ex. B12 is the certificate issued by P.M.P. Association of India, Vijayawada that he has done Refresher Course in Allopathic System of Medicine. Ex. B13 is the certificate that he is Member of Private Medical Practitioners Association of India.
44. The documents filed by the opposite parties only establish that OP3 is qualifed as MBBS Doctor and he also did M.S. in Surgery but not a qualified Gynaecologist.
45. From the investigation report conducted by the Police there is no doubt that OPs 1 and 3 have conducted caesarean operation in OP2 Nursing Home without any equipment and infrastructural facilities.
46. The mere fact that the Criminal Case C.C. 56/2001 was acquitted cannot lead to the conclusion that OPs 1 and 3 have not conducted the operation.
47. Even the statement of OP1 Compounder K. Lalaiah clearly establishes that operation was done by OPs 1 and 3 without proper anaesthesia and necessary blood and they did not even bother to conduct blood test The statement of Compounder K. Lalaiah cannot be brushed aside and it conclusively establishes that OPs 1 and 3 have conducted the surgery.
48. On the face of overwhelming evidence OPs 1 and 3 have filed false sworn statements before this Commission that they have not treated the patient and no surgery was conducted.
49.It is obvious that OPs 1 and 3 without following the prescribed medical standards have hastily performed the operation without any equipment like oxygen, necessary blood, etc. It is possible and probable that OP1 who is a quack has been going about as a qualifiedSurgeon and treating the villagers who could not afford to go to cities. Be that as it may, OPl has committed gross negligence in treating the patient and conducting the operation when he is not qualified to do so. It is also on record that another lady by name one Ilapaka Lakshmamma also died in the very same theatre. It has become very common for these quacks posing themselves as qualified Doctors treating the patients and endangering their lives. The A.P. State Medical Council should take serious note of these large number of quacks who are practising as qualified doctors in the villages and rural areas playing with the lives of innocent citizens.
50. It is unfortunate that OPs 1 and 3 did not hesitate to file false sworn statements asserting that they did not conduct any operation.
51. Taking into consideration the voluminous evidence placed before this Commission and the conduct of OPs 1 and 3, we hold that there is medical negligence on their part
52. In order to meet the ends of justice a sum of Rs. 3,00,000 is awarded as compensation together with costs of Rs. 5,000 payable by the opposite parties within a period of six weeks from the date of this order failing which the said amount would attract interest @ 9% p.a.
Complaint allowed.