ARCHANA SHARMA AND ORS. Vs. NORTH STAR HOSPITAL AND JOINT REPLACEMENT CENTRE AND ORS.

JUDGEMENT

(1.) THE complainants have filed this complaint against the opposite parties seeking a sum of Rs. 95,00,000 along with 12% interest per annum in respect to alleged medical negligence committed by the opposite parties in the treatment of Jitendra Kumar Sharma (deceased) and a further sum of Rs. 4,00,000 for mental pain and suffering and a sum of Rs. 50,000 for cost of the case. Briefly stated the facts of the complaint are that Jitendra Kumar Sharma (deceased) was engaged in a business of Tiranga Agarbatti along with his brother earning thereby a sum of Rs. 7,82,795, Rs. 8,12,340 and Rs. 9,56,817 in the Assessment Year 2009 -10, 2010 -11 and 2011 -12 respectively and he enjoyed a sound health and was not suffering from any disease. On 18.5.2012 at about 6 a.m. Jitendra Kumar Sharma was coming back to his residence by Honda Civic car after playing badminton. His car met with an accident and he sustained serious injuries on his nose including fracture at the root of the nose. Due to that injury, edema was developed. He had also sustained contusion on the left side of forehead just above the left eyebrow. He was taken to North Star Hospital and Joint Replacement Centre, Kanpur Nagar by Dr. Ashutosh Trivedi from his house who was known to the family of the deceased. Dr. Ashutosh Trivedi got CT Scan done of Jitendra Kumar Sharma as he had sustained contusion in the forehead. His X -ray was also got done. On 18.5.2012 Dr. Ashutosh Trivedi, Dr. Abhishek Trivedi and Dr. Sourav Gupta were duty doctors in the aforesaid hospital. The said three doctors took a decision to operate the nose of Jitendra Kumar Sharma for which his wife the complainant was asked for consent and she had expressed her apprehension about the success and urgency of the operation as CT Scan had not been got seen by any specialist till then and acute edema in the nose of Jitendra Kumar Sharma was present. However, upon the insistence of the said doctors, the complainant (wife of the husband), had reluctantly given the consent. After the operation of the nose of Jitendra Kumar Sharma, he was apparently looked well as he could walk and also could attend natural call. He did not complain about any acute pain during the period from 18.5.2012 to 20.5.2012 up to about 6 p.m. On 20.5.2012 at about 6 p.m., Dr. D.K. Singh, a Homeopath in consultation with Dr. Abhishek Trivedi administered two heavy dose injections of Phenergan and Serenace to Jitendra Kumar Sharma. After few minutes, Dr. D.K. Singh administered injection of Butrum 2 mg. to Jitendra Kumar Sharma in consultation with and in the presence of Dr. Ashutosh Trivedi and Dr. Abhishek Trivedi. At that time Sri Ram Khiladi Sharma, father of the complainant, along with other family members was present there. On seeing the Butrum 2 mg. injection, Sri Ram Khiladi Sharma had told the said three doctors present there that Jitendra Kumar Sharma was apparently well and was not complaining of any acute pain and, therefore, there was no need to administer Butrum 2 mg. injection. At this objection, all the three doctors annoyed and scolded Sri Ram Khiladi Sharma that they were the doctors and they knew their job well. Sri Ram Khiladi Sharma then kept mum and Dr. D.K. Singh administered Butrum 2 mg. injection to Jitendra Kumar Sharma. Soon after the administration of Butrum 2 mg. injection, Jitendra Kumar Sharma started perspiring heavily and his teeth were clenched. His nose had already been blocked due to nasal surgery. His condition started deteriorating fast and he had much difficulty inbreathing. The said three doctors after 30 minutes took the patient to the I.C.U. and after few minutes they declared him dead. Sri Ram Khiladi Sharma and his family members rushed soon into the alleged I.C.U. room and shocked to see that there was no necessary equipments and even oxygen cylinder was missing. This shows that the hospital administration had given the patient an ordinary room in the name of I.C.U. simply with a view to cheat the patient by preparing inflated bills. Dr. D.K. Singh, Dr. Ashutosh Trivedi and Dr. Abhishek Trivedi are not qualified anaesthetist. Dr. D.K. Singh was not even an Allopathic doctor. He was a Homeopath and was not at all qualified to administer those injections or Allopathic medicines. There had been a gross medical negligence and serious deficiency in service on the part of the hospital as well as the said three doctors in respect to the treatment of Jitendra Kumar Sharma for which the complainants, being the wife and kids of Jitendra Kumar Sharma, are entitled to the relief as aforesaid.

(2.) THE opposite party No. 6 being unnecessary party has been deleted vide order dated 7.4.2014 passed by this Commission. The opposite party Nos. 1 and 2 filed their joint written statement, opposite party Nos. 3 and 4 have also filed their joint written statement while opposite party No. 5 filed his written statement separately.

(3.) IT is further pleaded by O.Ps. that Sri Ram Khiladi Sharma and Sri Brijendra Mohan Sharma, the attendants of the complainant, lodged a First Information Report with the Police Station. Sri Brijendra Mohan Sharma filed a complaint with U.P. Medical Council too, on which the notices were issued by the Medical Council to the opposite parties. In the proceedings before the Medical Council, Sri Ram Khiladi Sharma filed his affidavit. The contents of that affidavit are in complete contravention of the grounds taken in the present complaint petition. The Chief Medical Officer conducted an inquiry and by virtue of report dated 22.12.2012, found that the entire allegations made by the complainants Sri Prakash Sharma and Sri Brijendra Mohan Sharma were frivolous and no case of medical negligence was established. It is further pleaded that Dr. Abhishek Trivedi was in Jhansi on 19.5.2012 and 20.5.2012 staying in a Resort, therefore, the allegation of the complainant that on 20.5.2012 Dr. D.K. Singh administered the injection in presence of Dr. Abhishek Trivedi is false and concocted which malign the image of the reputed doctor in the society. Further there is no justification of the claim of Rs. 95,00,000 as the same has not been quantified relating to the medical negligence, neither the same has been established and corroborated in the affidavit in evidence filed by the complainants, therefore, the complaint case is barred by pecuniary jurisdiction of this Commission as only a claim of Rs. 4,50,000 seems to have been made in accordance with the provisions of Consumer Protection Act, 1986. The Consumer Protection Act, 1986 envisaged the three tier consumer councils and provides their jurisdiction to entertain the complaint case but in the instant case the complainants intentionally and deliberately bypassed the pecuniary jurisdiction of the District Consumer Forum and has filed the present complaint case claiming flimsy and imaginary amount of Rs. 99,50,000 which is wholly unjustified, illegal, arbitrary and is not supported by pleadings and evidence filed by the complainants. Since there is no justification in the claim for award of Rs. 95,00,000, the complaint case requires to be dismissed on this ground alone. The complaint is filed by the complainants collectively which is akin to a representative suit for which no separate applications have been filed by the complainants seeking permission of this Commission to file and contest the joint complaint case which is mandatory as per provisions of Order 8 Rule -1 applicable to the Consumer Fora by virtue of Section 13(6) of the Consumer Protection Act. As per Section 2(1)(d) of the Consumer Protection Act which defines the term 'consumer', since there is no single penny has been paid by the complainants towards the treatment of the deceased to the opposite parties, the complainants are not the consumers and the complaint is liable to be dismissed on this count too.