Judgment:
Vineeta Rai, Member:
1. This revision petition has been filed under Section 21 of the Consumer Protection Act, 1986 (for short œthe Act?) by Jai Prakash Mehta, Petitioner herein and Original Complainant before the Bihar State Consumer Disputes Redressal Commission (for short œthe State Commission?) being aggrieved by the order of the Fora below, which had dismissed his complaint of medical negligence on the part of Dr. B.N. Rai and Lallan Singh, Respondents No.1 and 2 respectively herein and Opposite Parties No.1 and 2 before the State Commission.
2. Facts leading to the Petitioners complaint are that on 26th June, 1998 while he was employed as a contract laborer by Respondent No.2 and working on electrification of a railway line he sustained serious injuries, due to electric shock, which included serious burn injuries on his right arm, and he became unconscious. Respondent No.2 first took him to one Dr. Sanjay Singh, who stated that it was a medico-legal case. However, without informing the police, Respondent No.2 thereafter took him to Respondent No.1/Doctor, who was an ENT Specialist and who advised x-ray of chest and right arm on the same day and prescribed some ointments and medicines. Though he was under medical treatment of the said Respondent No.1/Doctor for over two weeks, there was further deterioration of the burn injuries in his right arm and finally on 12th July, 1998 Respondent No.1/Doctor referred him to the Institute of Medical Sciences and S.S. Hospital, Banaras Hindu University, Varanasi (for short œthe Hospital?), where he was informed that gangrene had set in which could not be reversed and his arm had to be amputated. Being aggrieved by the medical negligence on the part of Respondents because of which Petitioner lost his right arm and which had very adverse and serious financial and emotional consequences for him, Petitioner filed a complaint in the District Consumer Disputes Redressal Forum, Rohtas, Sasaram (for short œthe District Forum?) on grounds of medical negligence and deficiency in service against both Respondents and requested that they be directed to pay him a compensation of Rs.4,00,000/- with interest @ 18% per annum from the date of accident till payment as also litigation and allied costs.
3. Respondents in their written statement denied the allegations made against them. It was contended that Petitioner was not a consumer under Section 2(1)(d)(i) of the Act since no fees were taken from him by Respondent No.1/Doctor. Further, he had already filed a case before the Labour Court and, therefore, the District Forum had no jurisdiction to decide the case. On merits, it was denied that there was any medical negligence or deficiency in service on the part of Respondents because (i) Respondent No.1/Doctor had provided only first aid to the Petitioner and thereafter referred him to the Hospital for further specialized medical treatment and (ii) on the day of the incident Petitioner was not an employee of Respondent No.2.
4. The District Forum, after hearing the parties and on the basis of evidence adduced before it, dismissed the complaint on the grounds that there was no credible evidence to prove that there was any medical negligence on the part of Respondent No.1/Doctor and further that he had earlier been treated by another Doctor who had not been made a party. It was also concluded that since no fees were paid to Respondent No.1/Doctor, there was no privity of contract between the parties and, therefore, in terms of Section 2(1)(d)(i) of the Act the Petitioner was not a consumer. So far as Respondent No.2 was concerned, the District Forum concluded that he was unnecessarily dragged in the matter. The complaint was, therefore, dismissed by the District Forum.
5. Being aggrieved, Petitioner filed appeal before the State Commission, which in its brief order upheld the findings of the District Forum by observing as follows :
œ3. Only prescription (Annexure-1 of memo of appeal) given by doctor O.P.No.1 is dated 12.7.98 who after noting .. sic .. Rt. Hand and thigh prescribed certain medicines. It also refers that on 5.7.98 certain medicine was prescribed. On 12.7.98 complainant was referred to BHU for better treatment. Hence we are of the view that at best complainant approached O.P.No.1 for the first time on 5.7.1998 and then on 12.7.98. There is no expert evidence to prove that medicines prescribed were not proper.?
4. The emphasis of complainant is that by not referring him to police, O.P.No.1 was negligent. The C.P. Act takes note of only medical negligence. The learned D.C.F. also found that prior to O.P.No.1, complainant was also treated by some other doctor Sanjay Singh (per statement of PW3) who gave some injections. Prior to filing of complaint before the DCF on 7.1.1999, complainant had filed case on 21.11.1998 before Labour Court against O.P.No.2 (Exbt.X) for wages referring the incident of 26.6.1998 and no allegation was leveled against O.P.No.1.
5. The learned DCF has also found and held and we also agree that O.P.No.2 was unnecessarily made a party in the complaint. It also held that complainant was not consumer as services were provided free of cost.?
Hence, the present revision petition.
6. Counsel for both parties made oral submissions.
7. Counsel for the Petitioner contended that the Fora below had erroneously concluded that there was no medical negligence or deficiency in service on the part of Respondents by disregarding concrete and credible documentary evidence as also evidence of witnesses, which disproved the contentions made by Respondent No.1/Doctor that he had only administered first aid to the Petitioner on two days i.e. 5th and 12th July, 1998 and thereafter referred him to the Hospital at Varanasi. The actual facts are that after Dr. Sanjay Singh had declined to treat the Petitioner being a medico-legal case, Petitioner was taken by Respondent No.2 to Respondent No.1/Doctor, who advised an x-ray on 28th June, 1998 through a written reference to the Shanti X-ray Clinic. Thereafter, Petitioner was under continuous medical treatment of the aforesaid Doctor who prescribed certain medicines, including on 5th and 12th July, 1998. A perusal of the prescription slip written in Respondent No.1/Doctors letterhead clearly specifies the medicines that were prescribed on 26th June, 1998 as also on 5th and 12th July, 1998, which included various ointments and some capsules. From this document, it is also clear that the Petitioner was referred to the Hospital seventeen days after Respondent No.1/Doctor treated the Petitioner and immediately on admission to the said Hospital, Petitioner was detected with having gangrene of the right upper limb following electric burns and amputation of the right arm had to be done to save his life. The finding of the State Commission that no medical evidence was produced, including expert opinion, to prove that the medicines prescribed were not effective or incorrect is not tenable because this is a case of res ipsa loquitur wherein the facts speak for themselves. If Petitioner had been properly treated for his serious burn injuries and referred in time to an appropriate health facility by Respondent No.1/Doctor, then gangrene and consequent loss of his right arm could have well been avoided. Clearly Respondent No.1/Doctor, who was an ENT Specialist, did not have the professional competence and skills to treat the patient for burn injuries and instead misled him by assuring that the medicines mainly in the form of first aid treatment would lead to his recovery. Respondent No.1/Doctors contention, which was unfortunately accepted by the State Commission, that Petitioner was first treated by a doctor who gave him an injection which may have led to the gangrene and his not having paid any medical fees are mere verbal contentions of Respondent No.1/Doctor just to save his own skin and to hide his medical negligence and professional incompetence. Under the circumstances, the claim of Rs.4,00,000/- sought as compensation is fully justified.
8. Counsel for Respondent No.1/Doctor in his oral submissions vehemently denied that the Petitioner was treated by Respondent No.1/Doctor on 26th June, 1998 or that he had made any reference in writing to Shanti X-ray Clinic for an x-ray on the Petitioner on 28th June, 1998. The letter was a fabricated document using Respondent No.1/Doctors name. If indeed he had referred the Petitioner, he would have appended his signature on the reference which is not there. The correct position is that Respondent No.1/Doctor had seen the Petitioner for the first time on 5th July, 1998 when he had prescribed first aid and other medicines and again on 12th July, 1998 when, in addition to the ointments, antibiotics were prescribed and on the same day the Petitioner was referred to the Hospital for œbetter treatment?. Petitioners contention that he was admitted to Respondent No.1/Doctors clinic is also totally false because Respondent No.1/Doctors clinic does not have indoor medical facility. Counsel for Respondent No.1/Doctor further stated that, as was also the finding of the State Commission, the Petitioner was first seen by one Dr. Sanjay Singh, who probably gave him an injection causing gangrene, and the Petitioner had for reasons best known to him not impleaded this doctor and tried to apportion the entire blame on Respondent No.1/Doctor. The Fora below being Courts of fact had rightly concluded that there was no medical negligence or deficiency in service on the part of Respondent No.1/Doctor. The present revision petition having no merit deserves to be dismissed.
9. We have considered the submissions made by learned Counsel for both parties and have carefully gone through the evidence on record. The undisputed facts in this case are that the Petitioner received burn injuries on 26th June, 1998 and was seen by Respondent No.1/Doctor and prescribed medicines primarily in the nature of first aid on 5th and 12th July, 1998, on which date he was referred to the Institute of Medical Sciences and S.S. Hospital, Banaras Hindu University at Varanasi, where his right arm was found to be infested with gangrene and, therefore, amputated. Although Respondent No.1/Doctor has vehemently denied that he had treated the Petitioner on 26th June, 1998 and had also referred him for x-ray to Shanti X-ray Clinic on 28th June, 1998, we are unable to accept this contention. From the prescription sheet filed in evidence before the State Commission, we note that Respondent No.1/Doctor had prescribed medicines to the Petitioner on 26th June, 1998 apart from 5th and 12th July, 1998. While Respondent No.1/Doctor has accepted part of the document pertaining to his having prescribed medicines on 5th and 12th July, 1998, it defies logic how he does not accept the earlier part of the same prescription sheet pertaining to the medicines prescribed on 26th June, 1998 and admittedly bearing his signature on his letterhead. Regarding the reference to the Shanti X-ray Clinic, of which there is documentary evidence on record, Respondent No.1/Doctor also has not been able to convincingly explain why the Shanti X-ray clinic should have recorded that the x-ray was done on a specific reference from Respondent No.1/Doctor. Further, Respondent No.1/Doctors contention that it was an injection given by Dr. Sanjay Singh prior to the Petitioner having been seen by him which caused the gangrene, is also not sustainable because the case summary from the Institute of Medical Sciences and S.S. Hospital, Banaras Hindu University, Varanasi clearly opines in writing that gangrene had set in as a result of electric burns. Further, as per medical literature* on the subject, which was also filed in evidence, one of the major causes of wet gangrene from which the Petitioner suffered almost invariably involves injuries from burns which if not properly treated can rapidly cut off blood supply to the affected area causing tissue death. Infection from wet gangrene can, therefore, spread quickly throughout the body and is a potentially life threatening condition.
Source* www.webmd.com/skin-problems-and-treatments/guide/gangrene-causes-symptoms-treatments
In view of the above facts, it is clear that the Petitioner got wet gangrene because of the burn injuries (and not because of any injection) which were not properly and adequately medically treated for over two weeks by Respondent No.1/Doctor.
We are also unable to accept Respondent No.1/Doctors contention that the Fora below did not have the territorial jurisdiction to try this case because the Petitioner had already approached the Labour Court. It is well settled through a number of judgments of the Honble Supreme Court, including e.g. Karnataka Power Transmission Corporation Vs. Ashok Iron Works (P) Ltd. [(2009) 3 SCC 240], Arvind Mills Ltd. Vs. Associated Roadways [(2004) 11 SCC 545], that the remedy under the Consumer Protection Act, 1986 is an additional remedy available to the consumer and not in derogation to any other law for the time being in force.
What constitutes medical negligence is well-settled by a number of judgments of the Honble Supreme Court, including in Jacob Mathew Vs. State of Punjab And Anr. [(2005) 6 SCC 1] and Indian Medical Association Vs. V.P. Shantha And Ors. [(1995) 6 SCC 651]. Gleaned from these judgments, essentially the three issues pertinent to what constitutes medical negligence are: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis “ including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. Applying the above principles in the instant case, we are of the view that at least two of the three principles are attracted to prove medical negligence because (i) Respondent No.1/Doctor being an ENT specialist did not prima facie possess the medical skills to treat a serious burn injury but which he continued to treat for over two weeks; and (ii) he did not adopt the practice in respect of diagnosis and treatment in the case, which would be adopted by a doctor of ordinary skill in accordance with at least one of the responsible bodies of opinion of professional practitioners in the field, since he gave only first aid treatment which was totally inadequate and ineffective for injuries caused by serious burns.
We are also in agreement with the contention of Counsel for the Petitioner that this is a case of res ipsa loquitur wherein the facts speak for themselves. The Fora below erred in not correctly assessing and appreciating the evidence before them and erroneously concluding that there was no medical negligence. We, therefore, have no option but to set aside the order of the Fora below and hold Respondent No.1/Doctor guilty of medical negligence. However, we do not find any case of negligence or deficiency in service against Respondent No.2, who after the incident in question immediately took the Petitioner for medical treatment.
We have also carefully considered the quantum of compensation which would be just and reasonable keeping in view the medical negligence on the part of Respondent No.1/Doctor. In this connection, we note that though the Petitioner has sought compensation of Rs.4,00,000/- alongwith interest @ 18% per annum from the date of accident till payment as also litigation costs, he has not given any reasons for seeking the same, including projecting his future loss of income or the medical expenses incurred by him during his treatment. However, keeping in view the facts and circumstances of the case, including the disability suffered and his diminished opportunities for working as a contract labour, we are of the view that compensation of Rs.2,00,000/- with interest @ 6% per annum from the date of the complaint i.e. 07.01.1999 till December, 2013 would be reasonable and justified in this case alongwith litigation costs of Rs.20,000/-. The total amount to be paid to the Petitioner by Respondent No.1/Doctor would, therefore, be Rs.4,00,000/- (i.e. compensation of Rs.2,00,000/-, interest of Rs.1,80,000/- and litigation costs of Rs.20,000/-), which Respondent No.1/Doctor is directed to pay to the Petitioner within a period of three months from the date of pronouncement of this order.
10. This revision petition is allowed on the above terms. No order as to costs.