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G. Bala Krishna Pai Versus Sree Narayana Medical Mission General Hospital CMCL 930a
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
HON’BLE MR. JUSTICE S.N. KAPOOR, PRESIDING MEMBER Sree Narayana Medical Mission General Hospital And T.B. Clinic & Ors.
[From the order dated 12.3.1996 in Complaint No. 103/1996 of the State Consumer Law—Medical Negligence—Claim for compensation—Appre-
ciation of evidence—Delivery of child—No doctor or Gynaecologist present—
Labour pain injunction given after delivery of child—No facility of Oxgen—
No proper treatment given—No medical record maintained—Child suffered
form asphyxia—Consideration of—Held—Hospital failed to take due care—
Clear deficiency in service—Awarded 3 lacs as compensation with cost and
interest. [Para—33 to 38, 42 and 43]
Consumer Law—Indian Evidence Act, 1872—Section 106—Medical Negli-
gence—Burden of proof—Held—Every material information within special knowl-
edge of concerned doctor hence concerned doctor, and hospital supposed to prove
that due care and caution has been taken while giving treatment. [Para—30]
Case Referred :
1. Gopal Krishnaji Ketkar v. Mahomed Haji Latif & Ors., (1968) 3 S.C.R Counsel :
Mr. C.N. Sree Kumar and Mr. Roy Abraham for Respondents Mr. Justice S.N. Kapoor, Presiding Member : The above named two complainants
feeling aggrieved by the order of dismissal of their complaint in OP No. 103 of 1996dated 12.3.1996, have filed this appeal claiming Rs. 4,21,000 as compensation for medicalnegligence in treating appellant No. 2 and her child.
2. The case of the appellant/complainant is that during the period of her second
pregnancy K. Vandana the second complainant, wife of the first complainant used toconsult Dr. Mrs. Soji Kurien a Gynaecologist in Sree Narayana Medical Mission GeneralHospital during the relevant time. As advised by Dr. Mrs. Soji Kurien, she went to thehospital in the morning of 18th July, 1993. Since Dr. Kurien was on leave, check upwas done by another doctor. The attending doctor said to her that delivery was likelyto take place the very same day. As no room was available, she was advised to go home and return when labour pain would start. By 7.40 p.m. on 18th July, 1993, she noticeddischarge and reached hospital along with her husband and reported to the duty nurse.
She was examined by the Duty Doctor M.D. Balachandran and Dr. G.S. Venkitesan,the Chief Medical Officer. As advised by them, drip was started. Thereafter, she was leftin the care of nurses. Just before delivery Dr. Indira Kaimal visited the ante-room to attendan ailing infant also examined her at the request of the nurse with reluctance saying thatshe will send the surgeon. The complainant delivered a female baby at 10.30 p.m. inabsence of any doctor. The episiotomy was conducted by a nurse.
3. The baby did not cry after the delivery. The complainant heard lapping of hands
and then only the second opposite party Dr. M.D. Balachandran came to the labourroom. He sent one-sweeper woman to fetch Dr. Indira Kaimal, Paediatrician. She cameand directed to administer oxygen to the baby. But, since oxygen cylinder was not available,the child began to cry. The Doctor left after handing over the baby to the bystandersand cousin of Vandana. Thereafter, the child was not examined by any doctor till thenext morning. When the child was taken to Dr. Indira Kaimal the next day at 9 a.m.,brushing aside the request to examine the child, she did not examine the child nor gaveany opinion regarding the condition of the child nor she took any precaution though thebaby was showing restlessness and uneasiness. The child cried for sometime on 20thJuly, 1993 and suddenly fell silent after 9.30 a.m. The colour of the baby became bluish.
It was immediately taken to the duty room and there the child was examined by Dr.
Balachandran and Dr. Indira Kaimal. The doctors prescribed glucose orally. After sometime the discolouration repeated. It was again taken to the duty room. Some medicineswere prescribed but the condition of the baby did not improve.
4. Dr. H.G. Suresh of Alleppey District Hospital was contacted who after ascertaining
the facts opined that the symptoms could have been caused due to lack of oxygen supplyto the brain. Dr. Suresh visited the child at about 9 p.m. Dr. M.D. Balachandran andDr. Indira Kaimal did not cooperate. Dr. Suresh came for the purpose of discussion andleft after advising to take the child to the Alleppey Medical College Hospital if the conditiondid not improve. The condition of the child deteriorated thereafter. The child had continuousfits though attempt was made to control by medicine. At about 3 p.m. on 21st July,1989, the child was taken to Alleppey Medical College Hospital. On examination, thechild was found to be suffering from extensive brain damage. The puss formation wasdeveloped in the part of the body of the baby where needles for the intravenous injectionswere injected. It needed prolonged treatment. The child developed incurable abnormalitiesincluding mental retardation and affected physical and mental development of the childas well as caused deformity in right leg. The complications arose only because of callousnegligence and deficiency in service caused during the confinement and at the time ofdelivery of the child in the respondent hospital.
5. The complainant/respondent had claimed Rs. 4,49,457.27 as compensation, (Rs.
28,457.70 ps, the amount had already been spent for treatment and upkeep of the childalong with Rs. 21,000 to be spent on surgery for setting right deformity the right leg),jointly and severally from the above named respondents along with cost of Rs. 5,000.
6. The hospital contested the matter, inter alia, on the ground that the allegations
did not constitute a consumer dispute. However, the admission of the second complainantin the Hospital for delivery and delivery of female baby has not been disputed. All otherallegations were denied. It was denied that the complainant was not treated with properattention and care. The patient was examined by the duty Doctor, Dr. M.D. Balachandran G. Bala Krishna Pai Versus Sree Narayana Medical Mission General Hospital and by Dr. D.S. Venkatesan, respondent No. 4. Dr. M.D. Balachandran was presentthroughout and was attending the second complainant at the time of delivery. The deliverywas normal but the child was asphyxiated. Immediately by about 10.45 p.m. Dr. Mrs.
Indira Kaimal, paediatrician was summoned who reached and attended to the child withinminutes by administering the necessary medicines. Even before her arrival oxygen wasadministered and all necessary steps were taken as found necessary and proper care andattentions bestowed on the mother and the child. Dr. Indira Kaimal attended the babyon 19th and 20th July, 1993 also. Every possible treatment was given to stabilise thecondition of the child who had developed cyanosis and attacks of fits. Necessary injectionswere given by Dr. R. Lakshmi. Doctors and nurses were attending the baby without anyfail. When abnormalities were noticed proper medicines were administered and utmostcare as was available in the Hospital was given to the child. As per para 5 of the versionof Dr. G.S. Venkatesan, the labour room was provided with oxygen cylinders. In para3, it was claimed that the abnormality and deformities said to have been noticed werenot caused by the deficiency in service or negligence of the opposite parties. By aboutnoon on 21.7.1989 its condition had been stabilised. On 20.7.1989 at about 9 p.m.
Dr. Suresh, a reputed paediatrician attached to the District Hospital, Alleppey visitedthe baby and at his direction as requested by the complainant the child was dischargedto be treated at the Medical College, Alleppey. The compensation claimed is imaginaryand exorbitant.
7. Dr. M.D. Balachandran, respondent No. 2 claimed that when the second com-
plainant arrived, he was present and attended. On conducting episiotomy the child didnot cry on birth. Necessary attention including administration of oxygen was immediatelygiven. The respondent No. 3 the Paediatrician was sent for and she reached within minutesand attended to the baby. The allegation that the baby developed complaints due toprolonged labour and due to his failure to attend is denied.
8. The third respondent/opposite party Dr. Indira Kaimal claimed that the complaint
was frivolous, vague, and speculative and lacked merit. She further claimed that the matterwas not covered under the Consumer Protection Act. She was called to the labour roomat about 11 p.m. on 13.7.1989 and found that oxygen was being administered to thebaby. Suction was done. Injection of soda bicarbonate along with betnasol was givento the baby by the duty doctor and the nurse. On examination of the baby it was noticedthat it had already commenced gasping type of breathing and immediately resuscitationwas done. She ventilated the baby till spontaneous respiration was established. Immediatelythe baby started crying. Thereafter immediate supportive line of treatment by administeringoxygen, injection, Vitamin K, and ampicillin were administered and to keep the bodytemperature steady hot water bottles were placed near the baby. Instructions were givento the duty staff nurses to watch for cyanosis and fits. The mother and the child werekept under close observation after the delivery. She left the labour room only after thecondition of the baby became stable. The Doctor again examined the baby on 19th morningwhen jitteriness was noticed. The baby was given 25% glucose through ryles tube andanticipating fits, phenobarbitone was also administered. In the evening, she examinedthe baby once again. Medicine was repeated. In the morning of 20th July the Doctoragain examined the baby and the condition was noticed as “generally stable”. But lateron the child developed cyanosis and the third opposite party immediately examined thebaby and oxygen was administered. Duty nurse was directed to take the baby to thesister room for close observation and monitoring the treatment. Baby became stable andanother antibiotic gentamycin was also started. In the evening the child had an attack of fits and the third opposite party was called and she immediately came and attendedon the baby. Calmpose and I.V. 10% glucose were given along with the medicine prescribedearlier. The fits was fully controlled and after the condition of the baby became stable,child was left in the sister’s room for close monitoring.
9. It was also claimed that about 9 p.m. on 20th July, 1989, Dr. E.G. Suresh,
Paediatrician, Govt. Hospital Alappuzha came to the house of the opposite party No.
3 - Dr. (Mrs.) Indira Kaimal and discussed the case. Dr. Suresh expressed satisfactionand it was denied that she did not cooperate with Dr. Suresh. Dr. Suresh requested Dr.
(Mrs.) Indira Kaimal to direct the baby to the Medical College Hospital , Alappuzha ifthe condition of the baby would not improve. The baby had fits again in the night of20th July, 1989 and in the morning of 21st July, 1989. The medicines were repeatedand in addition. Mannitol, Decadron, Oral glycerine and Epiwal were also administered.
The baby became stable and as per the advice of Dr. E.G. Suresh and as requested bythe complainants, the child was referred to Medical College Hospital, Alappuzha at 2p.m. on 21.7.1989.
10. Dr. G.S. Venkatesan, Chief Medical Officer -opposite party No. 4 claimed that
he was not directly concerned with Gynaecology and Paediatric cases for he was concernedwith general supervision of the above Departments. However, he claimed that during hisrounds in the hospital on the night of 18th July, 1989, the second complainant had occasionto examine Smt. Vandana before her delivery. He was satisfied that her condition aswell as that of the child to be born was normal. He gave necessary instructions to thenursing staff on duty and to the duty doctor. The delivery was normal attended by 3rdopposite party, Dr. M.D. Balachandran. The labour room had sufficient number of oxygencylinders. Dr. Indira Kaimal, the Paediatrician immediately arrived and gave necessarytreatment and medicines. Ultimately, it was stated that there was no deficiency in serviceon the part of either of the opposite parties.
11. From the side of the complainant only the complainant Smt. Vandana Devi
was examined as a witness in addition to filing of certain documents. From the otherside, Dr. Balachandran and Dr. Indira Kaimal were examined as witness in addition tofiling numerous documents.
12. During the course of proceedings, an application has been moved by the com-
plainant for deleting the name of the opposite party No. 4 from the array of the oppositeparties, in absence of any specific allegation against him and the claim being mainlyagainst Sree Narayana Medical Mission, Dr. M.D. Balachandran, opposite party No. 2,and Dr. Indira Kaimal, Paediatrician, opposite party No. 3. In view of this prayer, theappeal has been dismissed against opposite party No. 4.
13. The State Commission after considering the material on record raised the following
(i) Whether the dispute comes under the Consumer Protection Act? (ii) Whether there was any negligence or deficiency in the medical service rendered On the basis of material on record, the State Commission held that the complainant was a consumer for consideration was paid for service rendered by the hospital.
G. Bala Krishna Pai Versus Sree Narayana Medical Mission General Hospital In so far as deficiency in rendering service by the hospital is concerned, the State Commission held that the complainant had failed to establish any deficiency in serviceon the part of the opposit party/respondent and as such, the complainant was not entitledto any relief and the complaint was dismissed.
14. There is no denial of the fact that earlier the complainant was treated by Dr.
Soji Kurian, Gynaecologist in the same hospital. On 18th July, 1989, the duty Dr. Lakshmiexamined her as Dr. Soji Kurian was not available. She opined that delivery might takeplace on that day or the next day and since no room was vacant there, the complainantwent home. On that day itself in the evening at about 7.30, there was minor discharge.
She proceeded to the hospital in a car and reported to the general duty room. Nurse camethere and took her to the Ante Labour room and made her to lie there. Later, Dr. Balachandranexamined her by using stethoscope and later came out. After 10 minutes. Dr. Venkiteshcame and examined her and directed the nurse to start the drip and advised the patientto sleep. Medicine was given through drip. Some pain was felt by her. Muscular injectionwas also given. By that time, she was experiencing severe pain. No doctor was there. However,Dr. Indira Kaimal came there to attend a baby. Nurse requested her to examine the patient.
Though it was not her duty, Dr. Indira Kaimal examined her and she directed the nurseto call the Duty Doctor as there was rapid contraction and she told the nurse for surgeryand then she went out. There was severe pain and contraction to the patient. The patientwas taken to the adjacent room by the nurse with the help of sweeper woman. Till then,the Duty Doctor had not reached. Hence, the nurse herself did Episiotomy, Delivery waseffected. The newly born baby was not crying. The child was taken by holding on thelegs with head downward. At that time, Dr. Balachandran reached there. He directedthe nurse to bring oxygen. Dr. Balachandran gently patted the back portion of the child.
The patient heard that sound. She also heard somebody saying that there was no oxygenin the oxygen cylinder. Dr. Balachandran directed the nurse to call the paediatrician. Dr.
Indira Kaimal reached there. The oxygen cylinder was brought from the adjacent roomwhich was in use for another new born baby and administered the baby. In the meanwhile,10 minutes had elapsed. Thereafter, the baby began to cry. Dr. Balachandran came andafter doing the stitches he went out. After half an hour the patient was taken to AnteLabour room. Afterwards, she was shifted to the ward. Her cousin sister was also there,was carrying the child. The baby was continuously crying.
15. On 19th morning, the next day, the patient was informed by the nurse that her
baby was to be taken to the paediatrician. But, the baby was returned back as the babywas examined on the previous day and the baby was crying continuously. Jitteriness wasnoticed.
16. On 20th morning when the baby was crying, a bluish colour was noticed to
the baby. Baby was taken to the duty room by the cousin sister of the complainant.
The baby was treated by the doctor and after 15 minutes the baby was taken back toher mother. The bluish colour disappeared. Again on 20th itself the bluish colour wasnoticed on the baby while crying. The baby was again taken to the duty room by thenurse. Thereafter the baby was not given to the complainant. On that day at noon, thecomplainant was taken to the duty room for breast-feeding the child. The baby was indeep sleep and was not sucking properly. Later on, the complainant was informed thatthe disease of the baby intensified. Dr. Suresh, Paediatrician had examined the baby.
17. The next day, the baby was taken to the Medical College, Alleppey. After the
baby was brought to her, she noticed a big wound on the right leg where the drip wasapplied and the wound was deep and pus forming stage. The left anckle portion wasfound “loose”. As per her statement, the child was aged four years; there was no propermental and physical growth. There was brain damage to the child due to lack of propertreatment at the time of delivery and thereafter.
18. She was put to a lengthy cross-examination. In cross-examination when a
suggestion was put on behalf of Dr. Balachandran that episiotomy was done by the secondopposite party i.e. Dr. Balachandran, she categorically stated that as the doctor failedto reach in time Nurse done Episiotomy. This is done for quick delivery. .
19. Some another questions were put to her as under :
Q. It is put to you that Episiotomy was done by 2nd O.P. to your delivery and artificial breathing by mouth was given to your baby? A. Doctor was not there. I do not know the details after the baby was taken from Q. Whether you have any blood relation with your husband before marriage? PW2-Dr. G. Balakrishna Pai is the husband of the complainant No. 2.
20. He supported her wife. He also stated that after delivery Dr. Indira Kaimal along
with a nursing student came out of the labour room. On inquiry, the nursing studenttold him that his wife had pain and she was going to call the doctor. Later on anothernurse told him that Vandana had delivered and messenger had gone to call the doctor.
Then, Dr. Balachandran reached and went to the labour room. Immediately a sweeperwoman came out of the labour room and went to the Doctors’ Quarters and came backalong with Dr. Mrs. Indira Kaimal and went to the labour room. He also stated that hiswife told him that there were complications during the delivery and no doctor was presentat that time and the baby did not cry immediately after birth. He consoled her wife andcame out of the ward.
21. On 20th morning when the baby was crying, suddenly the cry stopped and a
bluish colour began all over the body of the baby. The baby was immediately taken tothe duty nurse. Dr. Indira Kaimal reached there and advised to bring oral glucose, sayingthat it was due to hunger. After some time, the baby was kept on the bed beside themother and advised to feed the ret of the glucose to the baby orally. Again the babydeveloped bluish colour on the body. Baby was taken to the duty nurse. The nurse keptthe baby in the duty room. Dr. Indira Kaimal reached there and administered oxygento the baby. On inquiry of the complainant, the duty nurse informed him that oxygenwas being given to the baby and baby had bluish colour on the hands and legs and onthe face off and on. Even in the afternoon also he enquired again to the duty nurse.
She told that the baby was still developing bluish colour. He felt that the body had someserious complications; he consulted Dr. Suresh, Paediatrician of Alleppey District Hospitalover the telephone. Dr. Suresh, told the complainant that these symptoms were presentin the baby when is brain did not get oxygen to the complications during the deliveryand if there were any constraints in that hospital to treat the baby. He advised to takethe baby to Alleppey District Hospital. He informed this matter to Dr. Indira Kaimal whotold him that it was not advisable to transport the baby because it had Cynosis. He againinformed Dr. Suresh the details. Dr. Suresh told him that he would be coming to the G. Bala Krishna Pai Versus Sree Narayana Medical Mission General Hospital hospital and see the baby as he was to come to Cherthala (Sherthalai) in the evening.
The duty nurse told that the baby had fits one or two times when Dr. Indira Kaimal cameto examine the baby asked to buy Glucose, I.V. Set and Gardinal tablet.
22. Dr. Suresh reached the hospital at 9 O’clock. Since Dr. Indira Kaimal did not
reach the hospital, he examined the baby with the permission of Dr. Indira Kaimal. Dr.
Suresh and the complainant went to the residence of Dr. Indira Kaimal. Dr. Suresh opinedthat the baby had jitteriness, and baby was dehydrated. Since the baby had fits, opinedto give feeds throughnasal tube and to start drips. Dr. Suresh also advised him to takethe baby to the M.C.H as the baby required good care at that stage which the babywas not getting at the hospital and went. During night also the baby had continuousfits. Nothing was done materially to control the fits. Next day morning the baby hadfits again. He informed the details to Dr. Suresh at 6.45 morning. He advised him totake the baby to M.C.H. The complainant told this to Dr. Indira Kaimal who advisedhim to take the baby after the fits were controlled. Then the medicines Zodium Valporate,IV Set, Oral Glycerine, were bought and given in the duty room, as prescribed by her.
Baby had fits even after that.
23. In the afternoon at 2.15 the duty nurse gave him a referral letter and asked
him to take the baby to the M.C.H. At 3 p.m. on that very day the baby was broughtto M.C.H. The baby was examined by Duty M.O. In the ticket he wrote that the babyhad I.C.H. (Intra Cranial Haemorrhage), Moro absent, History of asphyxia, complaintsof Cyanosis, Convulsions from day before. Dr. M.L. Thomas examined the baby. Hetold him that if the babies develop Neuro Genic fits, there was no purpose in their lifeeven if they survive.
24. He also told that on the right leg at the sight where the drip was given from
the Hospital at Cherthala began to form pus. This wound became a large one. Theydiagnosed Hypoxic Ischemic Encephalopathy. Gradually, paralysis was affected to theleft leg. Right hand of the baby also found paralysed. When the baby taken for checkup in the M.C.H. they were told all these occurred due to the brain damage and furthercomplications could be seen only by follow up. Dr. P.G. Chandrasekharan Nair at M.C.H.,Alleppey started Physiotherapy for the contracture developed on the right leg which wascarried out up to 9.3.1990. On 20.10.1993, Dr. V. Ramananda Pai, Paediatric Surgeon,M.C.H., Alleppey carried out the operation. The baby remained in M.C.H from 18.10.1993to 30.10.1993. The baby was examined at the Department of Paediatric Neurology atM.C.H. It was certified the baby had mental retardation. The baby was now 5 yearsold. The baby had mental age of 3 years only. He further stated that no gynaecologistwas present at the time of delivery. The baby did not cry after the delivery. The babygot any treatment only after the development of Cyanosis on the 20th. All this happeneddue to negligence of the opposite party, hospital. Baby had no congenital malformationor developmental defects. The child could not be admitted even in LKG.
25. On 7.9.1990, the complainant requested for the case sheet from the hospital,
but he did not get any reply. Only after notice was given through Consumer ProrectionCouncil, photocopies of the case sheet were sent to them by the hospital. Baby is a femaleone and cannot survive without depending on others throughout her life. If the baby wouldhave been given proper treatment at the time of delivery and thereafter, such situationmight not have arisen.
26. From the side of the opposite party/ respondent, the most crucial evidence is
that of Dr. Balachandran. Of course, he supported his own version and claimed that he was present but he definitely admitted that Dr. Soji Kurian, the Gynaecologist andDr. Lakshmi, Assistant Gynaecologist were not present at the time of delivery. There isno explanation whatsoever as to why at the time of delivery, no Gynaecologist was present.
27. There is yet another aspect, relating to genuineness of the case sheet. It would
be worthwhile to re-produce the questions put to Dr. Balachandran and his answers : Q. Details of Doctors Examination is not seen in the case sheet? A. Used to write if there is Abnormal finding.
Q. Is it (all details) not written usually all details even if there is no abnormality? A. The entries in the page 2 of the case sheet is in my hand writing. F.H.S. will be noted periodically. Such a practice is there in M.C.H. Here there is no suchpractice.
Q. There was “some delay up to Sodium bicarbonate is written” on the side margin A. Written on 18.7.1989 itself. Written in the Margin. B.P. also noted in the Margin.
Separately noted is due to given to the Baby. The writings below 19.7.1989 isnot in my handwriting. Written in the margin is my handwriting.
Medicines seen in the nurses daily records is given by my instructions. 5-2 itemtime recorded is not correct. 9.55 p.m. written is wrong. “Injection Methergin”is given after delivery.
Q. It is recorded in the Nurses Daily record that “Injection Methergin”, Injection A. That also recorded time wrongly. I have not given instruction for Bethnesol.
Methergin is to contract the uterus after delivery.
The case details of the baby is written through Mother’s case sheet.
Injection Methergine is to be given when the Placenta expels.
He denied that according to him the baby took breath after 3-4 minutes butit was not recorded in diary. Delay in breathing was recorded. He also deniedthe following suggestion: Q. It is put to you that the baby had Asphyxia due to the rapid contraction caused by the effect of the medicines administered before the delivery and also due toabsence of the doctors during the delivery period to assist? Re. The time 9.55 noted in page 9 of P17 is may be 10.55.
Interest will be taken to care the patients affairs first and recorded later.
While there may not be any dispute about the interest of the patient but thehospital was also supposed that a Gynaecologist or at least a Assistant Gynae-cologist should be available at the time of delivery and the matter should nothave been left to duty nurses/staff when the services of a Gynaecologist are sought.
Some specific questions were put to Dr. Indira Kaimal which are as under: G. Bala Krishna Pai Versus Sree Narayana Medical Mission General Hospital Q. In the case sheet of 18.7.1989, it was written by me “Cyanosed cold clammy limbs” at 10.45 is as per instructions of the Duty Doctor. Cold clammy means“very cold” In the case sheet dated 18.7.1989 and 19.7.1989 of the baby, the doctors’ recordand nurses daily record are in my handwriting. In the signature column of nursesdaily record, the writing ‘pt’ is not in my handwriting.
28. In order to verify whether the medicines were given according to my instruction
can be seen from the nurses daily record.
Q. In this case it seems that medicines not given. Anything to say? A. It is not seen in this case sheet. If verification is needed there is another nurses Q. It is put to you that seeing this case sheet medicines you cannot affirmatively A. For verification Nurses daily record is in the hospital. It can be taken.
Q. It is seen in the case sheet that many medicines prescribed by you on 20th were A. One sheet is missing from the nurses daily record of the case sheet.
Q. Can it be taken that the Asphyxiated baby became normal after it has cried? A. The baby can be said normal when it cries, only on examination and found on examination the other vital functions are normal.
Other vital functions means Heart, Temperature, Nutrition, etc. including Res-piration.
Q. There is no such record of examination of the vital functions seen in the case I also agree that the textbook of Paediatrics by Nelson is any authority. Nelson’sText Book of Paediatrician 4th Edition (1969) Page No.458, Paragraph Heading“Hypoxia and Ischemia” shown to the Doctor (RW2) and asked whether she agreeswith Ethology i.e., what is said about Ethology in that particular paragraph? Q. Do you agree with the suggestion that uterine contractions result is in Postnatal A. No. If it happens all the babies born will have Birth Asphyxia? Q. Will rapid contraction of uterus result in perinatal Hypoxia? A. Need not be. It may or may not occur.
Q. Do you concur with the details given in page 458 of Nelson’s book (table 9) regarding A. According to the textbook may be, but I have not come across any of these cases.
I have seen and treated babies having severe Birth Asphyxia than this but theydo not have any of the neurological or any of the complications mentioned inthe text book. Even in this also I never suspected any complications.
29. There is no reason for the two complainants to falsely allege either against the
hospital or the doctors in whose hands they left her body and soul unless something iswrong with the hospital or the concerned doctor(s).
30. One could be not oblivious to the fact that for our purposes question of medical
negligence has to be decided in the light of preponderance probabilities and the caseof the complainants could not be thrown out on the specious plea that the specific pleaswere not taken or on the point of onus proof, for onus of proof loses its sharpness, whenboth the parties enter into evidence, and both are required to produce the best evidenceavailable. One has to see the evidence in these matters in the light of the fact that aman on the street is pitted against an expert, he depends upon doctor’s special knowledgeabout the medicines they administer. They are supposed to maintain accurate recordof treatment as well medicines administered. However, in these cases where virtually everymaterial information is within special knowledge of the concerned doctor, in terms ofSection 106 of the Evidence Act then the concerned doctor and the hospital are supposedto prove that due care and caution was taken while giving treatment. Section 106 readsas under : “106. Burden of proving fact especially within knowledge—When any fact is speciallywithin the knowledge of any person, the burden of proving that intention is uponhim.” “(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is uponhim.” 31. In this regard it may be appropriate to refer to the observations of the Hon’ble
Supreme Court in the case of Gopal Krishnaji Ketkar v. Mahomed Haji Latif & Ors.,(1968) 3 S.C.R. The relevant observations are stated herein below : “Even if the burden of proof does not lie on a party the Court may draw an adverseinference if he withhold important documents in his possession which can throw lighton the facts at issue. It is not, in our opinion, a sound practice for those desiringto rely upon a certain state of facts to withhold from the Court the best evidencewhich is in their possession which could throw light upon the issues in controversyand to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v.
Manichavasaka Pandara, Lord Shaw observed as follows: “A practice has grown up in Indian procedure of those in possession of importantdocuments or information lying by, trusting to the abstract doctrine of the onus ofproof, and failing, accordingly, to furnish to the Courts the best material for its decision.
With regard to third parties, this may be right enough-they have no responsibility forthe conduct of the suit; but with regard to the parties to the suit it is, in their Lordships’opinion an inversion of sound practice for those desiring to rely upon a certain stateof facts to withhold from the Court the written evidence in their possession whichwould throw light upon the proposition.” G. Bala Krishna Pai Versus Sree Narayana Medical Mission General Hospital This passage was cited with approval by this Court in a recent decision Biltu Ram & Ors. v. Jainandan Prasad & Ors. In that case, reliance was placed on behalf of thedefendants upon the following passage from the decision of the Judicial Committee inBilas Kunwar v. Desraj Ranjait Singh & Ors. : “But, it is open to a litigant to refrain from producing any document that he considersirrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit ofdocuments and he can obtain inspection and production of all that appears to himin such affidavit to be relevant and proper. If he fails so to do, neither he nor theCourt at his suggestion is entitled to draw any inference as to the contents of anysuch documents.” But Shah, J., speaking for the Court, stated : “The observations of the Judicial Committee do not support the proposition that unlessa party is called upon expressly to make an affidavit of document and inspectionand production of documents is demanded, the Court cannot raise an adverse inferenceagainst a party withholding evidence in his possession. Such a rule is inconsistentwith illustration (g) of Section 114 of the Evidence Act, and also an impressive bodyof authority.” 32. Medical ethics for registered medical practitioners, provides that every physician
was and is supposed to maintain the medical records pertaining to his /her indoor patientsfor a period of 3 years from the date of commencement of the treatment. Besides, physicianor a hospital is free to choose whom he/the hospital will serve. They should, however,respond to any request for his assistance in an emergency under Hippocratic oath. Oncehaving undertaken a case, the physician should not neglect the patient, nor should hewithdraw from the case without giving adequate notice to the patient and his family.
They are also not supposed to wilfully commit an act of negligence that may deprivehis patient or patients from necessary medical care.
33. From the statement of the complainant, it is evident that the services of Gy-
naecologist were not made available to the patient. Dr. Balachandran who is an ordinaryMBBS and not a Gynaecologist though claimed to have delivered the child but circum-stances indicate and corroborate the complainants that even he was not there at thetime of delivery. Had he been there at that time then they would not have stated abouthis absence. The way she stated virtually giving nearly all the details about treatment,which she got, were either at the hands of Dr. Balachandran or Dr. Venkitesh, or Dr.
Indira Kaimal before the delivery would indicate that there is a ring of truth in her statement.
34. It may be noted that the baby was delivered at 10.45 p.m. and according to
Dr. Balachandran, injection Methergin was given after delivery but his cross-examinationwould indicate that injection Methergin was given at 9.55 p.m. though he claimed thatthe time was not correctly recorded. If the nurse would have recorded the correct timeor if the injection Metherign would not have administered at 9.55 p.m., such a mistakewould have never occurred. Seeing in this light, one finds it difficult to rely on the testimonyof Dr. Balachandran and to reject the testimony of the two complainants indicating thathe was not present at the time of delivery.
35. The nurse who had prepared that record would only indicate that the correct
time of delivery and administration of injection Metherign is mentioned in the case diary.
Supposing Dr. Balachandran was present at the time of operation but undisputediy Dr.
Mrs. Soji Kurien or any other Gynaecologist were not present as had been admitted. If the services of any Gynaecologist or Asstt. Gynaecologist were not made available atthe time of delivery, this would certainly amount to deficiency in service on the part ofthe hospital.
36. Similarly, the fact that injection Metherign was given prior to the delivery at 9.55
p.m. as mentioned in Nurses record while this should have been given only after the deliveryby the nurse, would confirm the inference that due care was not taken. This could nothave happened if Dr. Balachandran was present. As stated by the complainant, Dr. IndiraKaimal, Paediatrics had noticed that there was rapid contraction and she told that shewould send the surgeon though this fact was denied by Dr. Indira Kaimal in her cross-examination for obvious reasons-would again indicate absence of Dr. Balachandran.
37. Thus, there are reasons to believe that Dr. Balachandran was not present at
the time of delivery; that oxygen cylinder was not available and time of about 10 minuteselapsed in bringing the oxygen cylinder from the adjacent room while that oxygen cylinderwas being used for another newly born child. One could also not be oblivious to the factthat though Dr. Indira Kaimal directed the nurse to call the Duty Doctor as there wasrapid contraction and agreed to send the surgeon. But, neither the Duty Doctor, nor thesurgeon turned up in time. The patient was made to suffer severe pain and contraction,causing lack of oxygen for the child during the labour pains. The child did not cry despitepatting, oxygen was required to be given but the oxygen was not readily available in theroom and it had to be arranged by depriving oxygen to another child in another roomwould indicate that evidently there was highly improper arrangement to provide medicalservices of a Gynaecologist along with necessary infrastructure like oxygen, etc.
38. In the light of above discussions, following deficiencies in rendering medical service
1. Injection Metherign was given at 9.55 p.m. as per nurses daily record register which led to contraction and increased labour pains causing suffocation and lackof oxygen to the child before delivery.
2. At the time of delivery, no Gynaecologist was present. Even Dr. M.D. Balachandran was not present and the delivery of the child took place with the assistance ofthe duty nurse.
3. Even the oxygen was not provided in time. Several minutes elapsed before Dr.
Balachandran reached, patted the child, sent the nurse for obtaining oxygencylinder from the adjoining room when it was found that the oxygen cylinderin the delivery room was empty and about 10 minutes or so would have beenallowed to elapse in this process. One would irresistibly infer about deficiencyin rendering medical service much more evident due to improper infrastructurein the hospital.
4. The medicines prescribed by Dr. Indira Kaimal were not given for Dr. Indira Kaimal answered that “it has not seen in case sheet”, and that “one sheet is missingfrom the nurses daily record of the case sheet”.
5. Medical record had not been kept properly. Further from cross-examination of Dr. Indira Kaimal the asphyxiated baby could be said to be normal when it cried,only on examination and found on examination the other vital functions werenormal. There was no such record of examining function of vital organs in thecase sheet, for Dr. Indira Kaimal answered in this regard “Not used to recordcompletely”.
Mono Industries versus New India Assurance Co. Ltd.
39. An expert witness Dr. E.G. Suresh was examined from the side of the complainant
and Dr. G. Venkatesan from the side of the opposite party. From the statement of Dr.
Suresh, Paediatrician, Superintendent, working in Distt. Hospital, Alappuzha it is evidentthat the child did suffer from asphyxia. According to him, hypoxic Ischemic Encephalopathymeant that the brain had suffered lack of oxygen sometime before the baby was seenand diagnosed as having HIE. He also stated that once brain damage was caused toa tender baby, it would not be possible in all cases to reverse brain damage by a doctorhowever efficient or experienced he or she may be (Not in all cases). However, he statedthat he could not say the exact cause of asphyxia of the child of the complainant. Healso stated that he was not an expert in neurological matters.
40. The above points do establish that there was medical negligence in providing
medical services and facilities at various stages and in all probability, the lack of oxygenled to asphyxia in treatment.
41. In so far as the statement of Dr. Venkatesan is concerned, for he stated that
he examined at a very initial stage when the complainant was brought in the hospitalhours before delivery. No specific complaint was made against him. Reproduction of hisstatement could be taken at the best as a doctor of the hospital who is interested in savingits reputation.
42. It is apparent that the hospital administration had failed to take due care of
the patient and the complainant at the time of delivery and neglected them as aforesaidat various stages and thus Shree Narayana Medical Mission General Hospital and T.B.
Clinic was deficient in rendering medical services.
43. In this light, we feel it appropriate to award compensation of Rs.3.00 lakh in
favour of the parents of child i.e. two complainants for the benefit of the child and againstShree Narayana Medical Mission General Hospital and T.B. Clinic with interest @ 6%p.a. from the date of complaint and cost of Rs. 5,000. They are directed to pay thisamount within a period of two months from the date of receipt of this order. The appealis allowed accordingly.
CMCL 930m
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DEHI
HON’BLE MR. JUSTICE M.B.SHAH, PRESIDENT, MRS. RAJYALAKSHMI RAO, (From the order dated 29.9.2005 passed in Appeal No. A-01/2001 by the State (From the order dated 29.9.2005 passed in Appeal No. A-01/2001 by the State Consumer Law—Insurance Claim—Assessment of "Burglary"—Held—Bur-
glary from premises by "forcible and violent" means of entry the word "violent"
was to be construed according to its or dinary meaning and meant entry by
the use of any force which was accentuated or accompanied by a physical at—
Word "violent accordingly referred to physical character of means of entry and
not merely to its unlawful character. [Para—13 and 14]
Consumer Law—Insurance Claim—Grant of Interest—Held—If the amount
is with held by insurance company for years together a lumpsum award as
compensation covering both interest and costs would not suffice—Insurance
company is directed to pay interest at the rate of 10% P.A. [Para—31]
Case Referred :
1. United India Insurance Co. Ltd. Vs. Harichand Rai Chandanlal, (2004) 8 SCC 644 2. George and Goldsmiths and General Burglary Insurance Assn. Ltd.(1989) 1 All ER 422 : (1989) 1 Lloyd’s Rep 379 (CA) Counsel :
M.B. SHAH, J. : President :
The issue that came up for consideration in this case is, whether the loss of goods sustained by the insured, fall within the meaning of ‘burglary’ as stated in the insurancepolicy? It appears that the judgment rendered by the Apex Court in the case of United India Insurance Co. Ltd. vs. Harichand Rai Chandan Lal - (2004) 8 SCC 644 is misunderstoodby the Insurance Company. In the said case, it has been held that ‘theft from the premisesby forceful and violently’ would mean entry by use of any force, however slight it maybe. As such, an entry obtained by picking the lock or forcing back the catch by meansof an instrument involves the use of violence. Whether it is burglary or not, depends uponthe facts and circumstances of each case. In the present case, entry by the culprits wasby removal of roof sheet which cannot be done without use of force. Hence, it wouldbe a case of violent entry for committing theft/burglary.
It is the say of the Complainant that the Complainant is engaged in manufacturing Mono Industries versus New India Assurance Co. Ltd.
of Polythene rolls, bags and tubes. It had obtained an insurance policy from the NewIndia Assurance Co. Ltd. for a sum of Rs.4 lakhs, for the period from 10.4.1992 to 9.4.1993on payment of Rs.1,140/- towards the premium. On the intervening night of 31st Augustand the 1st September, 1992, a burglary took place in the insured premises and informationto that effect was given to the Police and the Insurance Company. As the claim wasnot settled, the Complainant filed Case No.TC/826/98 before the District Forum, NewDelhi, claiming a sum of Rs.2,37,500/- towards the value of the goods stolen; and,Rs.2,00,000/- towards compensation, with interest at the rate of 18% p.a. and costs.
The stand taken by the Insurance Company before the District Forum was that : (i) on survey being conducted, it was found that there was no burglary, but that it wasonly a case of theft, which was not covered under the insurance policy; and, (ii) theComplainant did not furnish any proof of burglary, and hence the claim of the Complainantwas not tenable.
The District Forum after hearing both the parties and taking into consideration that the Complainant had shown to the investigator the broken roofing sheet which mighthave been removed by the miscreants to enter the premises, directed the Insurance Companyto pay to the Complainant the value of the stolen goods to the tune of Rs.2,37,500/- with interest at the rate of 18% p.a. from 1.9.1992, i.e. the date of the occurrenceof the loss, till the date of payment. Rs.2,000/- was also awarded by way of costs.
Feeling aggrieved, the Insurance Company went in appeal to the State Commission, Delhi, by filing Appeal No.A-01/2001. The State Commission vide its order dated 29.9.2005,while upholding the order of the District Forum, modified the order to the limited extentof deleting the direction of payment of interest, and, instead, awarded a lump sum ofRs.25,000/- towards compensation and costs.
Against that order, both the parties have filed revision petitions before us.
The Insurance Company filed Revision Petition No.251 of 2006 for dismissal of the complaint and setting aside the order of the District Forum.
Revision Petition No.3049 of 2005 is filed by the Complainant praying that interest on the amount as awarded by the District Forum requires to be confirmed.
As both the revision petitions arise out of the same judgment and order of the State Commission, we dispose of both of them by a common order.
In the revision petition filed by the Insurance Company, the learned Counsel Mr.Seth (i) no burglary occurred in the premises of the Complainant, hence, the loss or damage caused to the Complainant is not covered by the policy, as it is only a case of theft asregistered by the Police under Sec.380 IPC; (ii) there is no evidence on record to establish that the Complainant suffered loss I. Whether it is a case of burglary or theft? The learned Counsel Mr.Seth appearing on behalf of the Insurance Company heavily relied upon the decision of the Apex Court in the case of United India Insurance Co.
Ltd. Vs. Harichand Rai Chandanlal, (2004) 8 SCC 644 and contended that in case oftheft Insurance Company is not liable to reimburse.
In our view, the aforesaid judgment is misunderstood by the Insurance Company.
In the aforesaid case it is clearly held that if the entry is effected by exercise of any force, however slight, it was sufficient to constitute an entry within the meaning of thepolicy. Such entry can be described as violent in nature and character. For this purpose,the Court referred to Queen’s Bench decision in the case of George and Goldsmiths andGeneral Burglary Insurance Assn. Ltd.(1989) 1 All ER 422 : (1989) 1 Lloyd’s Rep 379(CA), wherein it has been held as under : “In the context of a policy of insurance against theft from premises by ‘forcible and violent’ means of entry, the word ‘violent’ was to be construed according to its ordinarymeaning and meant entry by the use of any force which was accentuated or accompaniedby a physical act which could properly be described as violent in nature and character.
In the context of such a policy the word ‘violent’ accordingly referred to the physicalcharacter of the means of entry and not merely to its unlawful character.” In the same context, the Court also referred to the passage from the Halsbury’s Laws of England, 4th Edn., para 646 wherein it has been observed that an entry obtainedby picking the lock or forcing back the catch by means of an instrument involves theuse of violence and is therefore covered.
“The determination of what constitutes visible marks or visible evidence within the meaning of such a provision, and of where such marks or evidence must be located inorder to satisfy the policy requirement, is to a great extent dependent upon the particularfacts involved in relation to the specific requirements imposed by the policy. Where, forexample, a burglary or theft policy requires that there must be visible marks of force orviolence ‘at the place of entry’ into the premises, this requirement has been held compliedwith if the visible marks are only on one of the outer doors to the insured’s premises,which the burglars or thieves must have used to accomplish their deed.” Keeping the aforesaid principle in back ground we would first refer to the finding recorded by the State Commission on the basis of the evidence of the Complainant.
The State Commission after appreciating the evidence which was brought on record arrived at the conclusion that it was a clear case of burglary. For this purpose, the StateCommission relied upon the version of the Complainant that at about 7.00 pm the officeSupervisor of the factory locked the godown from inside and kept the key in the office.
On the next day morning at about 9.30 a.m., the Operator, Mr.Jaganath, informed theComplainant on telephone that plastic granules lying in the godown had been stolen.
On receipt of the said information at about 10.15 am, the Complainant came to thefactory and found that the plastic items weighing 4,750 kgs had been stolen. For thispurpose, undisputedly, an FIR was lodged with the Police. The Police registered the caseunder Section 380 of the IPC. It is also pointed out that for entering the godown premisesa skilled person removed the plastic sheet from the ceiling of the roof, and, thereby enteredinto the premises, opened the door and took away large quantity of the granules.
Further, with regard to cause of incident, the surveyor appointed by the Insurance Company also stated to the same effect in the interim survey report dated 19.7.1993,which is as under: “During our Survey, following are our observations: 1. The main gate/entry, made of steel shutters were duly locked and intact with no breakages at all either in the locks, shutters or their Kundas etc.
Mono Industries versus New India Assurance Co. Ltd.
2. There is a small door entering in the godown from inside the shed which was opened by the culprits after using the key in the lock but it was not tampered at all.
3. After entering this godown, the culprits broke the Kundas of he steel door/gate with locks intact in the hooks and thus opened it and through which the insured’s rawmaterial packed in bags ware taken out from this godown and were loaded on a truckjust waiting outside on the main road on exit of this broken door/godown as claimedby the insured.
4. On enquiring the matter and how the culprits in the above circumstance entered the factory, the insured replies that he exactly does not know but there is possibility thatthe culprits must have entered after removing the roofing sheet of the shed. During oursurvey the sheet was already placed in its original position as per statement of the insuredand before our arrival at the Insured factory. Reason given by the insured is that for furthersecurity and to stop water coming inside the shed during the rainy day which was alreadyon during that period.
In the circumstances, as stated above the forcible entry inside the shed premises is yet to be established and it is under our investigations.” This would mean that even the Surveyor has considered it to be probable that entry of the culprits must be by removing the sheet of the roof.
It is also to be stated that by letter dated 1.2.1996 the Complainant informed the Grievance Officer of the Insurance Company as under: “This is further to our letter dated 8.8.1994. We write with much regret that no reply has been received from you. We contacted you personally and explained in detail theentire case.
Recently, we have been contacted by Police Inspector of Samaipur Badli, Police Station, regarding the burglary occurred at our factory on 31st August, 1992. We havebeen informed that a gang was caught by them, who were indulged in theft of plastic-raw-material. They took away the material from many factories/godowns in Delhi. ThePolice Inspector brought the person from that gang with him, who admitted that he alongwith many people broken the locks of our factory-godown and took the raw-materialbags in Nishan truck on 31.8.1992 and confirmed the quantity too. The Police Inspectorconfirmed that they have complete reports at Samaipur Badli Police Station, and givenphone number for any details if, required.
Now it has been proved that the burglary took place at our factory/godown on 31.8.92.
Therefore, we request you once again to kindly look into the matter carefully and settleour claim at the earliest.” Despite this, the Insurance Company never bothered to verify from the Police Officers In the light of the aforesaid evidence, the finding recorded by the District Forum and the State Commission that burglary as contemplated by the terms of the policy has takenplace. The entry of the culprit was by removal of roof sheet and exist was by breakingof locks. This would amount to forceful entry and forceful exit.
The next question is with regard to assessment of loss.
Admittedly, the Insurance Company had appointed a surveyor. Thereafter, the Char- tered Accountant appointed by the surveyor examined the records and arrived at theconclusion that the total value of the stock was Rs.15,54,820/-. However, as stock waskept in two godowns, they arrived at the conclusion that it was not possible to work outthe closing stock just before the occurrence of the loss at the factory premises where theburglary had occurred, with the records available with the insured.
As against this, it is to be stated that as per the policy which is produced on record, the sum insured is Rs.4 lakhs on stock used in manufacturing of polythene sheets/bags,whilst stored and/or lying in the insured’s factory at the address mentioned therein, i.e.
at the place where the burglary took place. It is also to be stated that to avoid any furthercomplications, in appeal, the State Commission by order dated 24.1.2005 directed thatas there was no dispute as to the price of the goods lying in the factory and as the surveyorappointed by the Insurance Company has not assessed the loss on the ground that itwas because of theft which was not covered by the policy and that he was not in a positionto assess the loss for want of documents which were to be furnished by the Complainant,directed the Insurance Company to call upon the Complainant within a period of oneweek from the date of the order to furnish the requisite documents on the basis of theclaim preferred by the Complainant. Despite this specific order, assessment was not madeby the surveyor/or the Insurance Company.
It is to be stated that the Divisional Manager wrote a letter to the Legal Department on 27th November, 2007 to the following effect: “As already informed to you that the assessment of the above loss was not done by the Surveyor, Mr. A.K.Gupta who had only issued the Interim Report in regard tothe loss. The undersigned had personally discussed the matter with the Surveyor overtelephone who has informed that since he is going to Dubai and will not be able to proceedfurther in the matter only after he comes back after 10 days.
In these circumstances, we request you to advise us whether we should satisfy the Award given by the consumer Court amounting to Rs. 2,37,500/- + interest @ 18% p.a.
from the date of loss, i.e. 1-1-92 till the date of payment or we may get the loss assessedby the Surveyor on the basis of the adequacy of the sum insured since the amount ofRs. 2,37,500/- is the estimated loss of the insured.” Further, it is to be stated that by letter dated 18th March, 1984 the Branch Manager of the Insurance Company informed the surveyors to submit their report immediatelyby stating as under : “Please refer our letter dated 15.3.94. We have received a copy of our letter of the insured dated 9.11.93 photocopy attached herewith for your records. As reported by thebankers of the insured that all your requirements had been completed by the insuredbut till date we have not received the report. Further, we would like to inform you thatall the required documents are available with the insured’s banker. You may contact themalso if required.” The surveyor has not complied with this. It is not the fault of the Complainant if the Surveyor fails to assess the loss for the reasons best known to him, despite necessaryrecords furnished by the Complainant, then the complainant should not suffer.
Further, even in the stock statement dated 7.10.1992 which is produced on record before this Commission, the Dena Bank has specifically deducted a sum of Rs.2,37,500/-. This would indicate that immediately after the burglary even the Bank has accepted Bombay Hospital & Medical Research Centre Versus Sharifabai Ismail Syed the said amount as the loss suffered by the Complainant for the loss of goods weighing4,750 kgs.
In this set of circumstances, the consistent version given by the Complainant with regard to the loss suffered by him was accepted by the State Commission as well asthe District Forum. As per the facts and circumstances of the case, the finding recordedby the District Forum and the State Commission cannot be said to be in any way illegalor irregular which would call for interference.
III. Whether the Complainant is entitled to any interest? The next question which requires consideration is whether the order passed by the District Forum directing the Insurance Company to pay the amount with interest at therate of 18% p.a. requires to be restored or not? The learned Counsel for the Complainant submitted that there was no justifiable reason for the State Commission in not awarding the interest on the amount of loss sufferedby the Complainant and in awarding only Rs.25,000/- in lump sum.
In our view, the aforesaid submission is also justifiable. Because, the incident of burglary took place on the intervening night of 31st August and 1st September, 1992. And, ifthe amount is withheld by the Insurance Company for years together, lump sum awardof Rs.25,000/- as compensation, covering both interest and costs, would not suffice. Hence,just compensation is required to be awarded. Just compensation would mean award ofreasonable rate of interest in case of loss suffered in terms of Rupees. In other words,proper measure or yard stick for granting compensation would be award of appropriaterate of interest on the amount which Complainant would have received, had the claimbeen settled at the right time. Hence, the Insurance Company is directed to pay the aforesaidamount with interest at the rate of 10% p.a.
In view of the aforesaid discussion, the Revision Petition No. 251 of 2006 filed by In the result, the Revision Petition No.3049 of 2005, filed by the Complainant is partly allowed. The Insurance Company is directed to pay the sum of Rs.2,37,500/- withinterest at the rate of 10% from 1st March, 1993, ie., after 6 months from the date ofthe occurrence of the incident, till the date of payment.
CMCL 930s
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT, DR. P.D. SHENOY, MEMBER Bombay Hospital & Medical Research Centre Consumer Law—Medical Negligence—Claim for compensation—Allowed—
Validity of—Appreciation of evidence—MRI scanning conducted by senior
Reagent—Report prepared by consultant doctor—Operation done but not found
and tumour—Second scanning conducted and found exact position of tumour
and conducted operation again—Consideration of—Held—Hospital is respon-
sible for providing infrastructure service—Consultant radiologist is thereafter
responsible for viewing the completed scan and interpreting the films presented
to him—While senior regident committed blunder therefore hospital and doctor
would be jointly and severally liable to pay compensation. [Para—27, 28 and 34]
Counsel :
Mr. Chitale J.M,, and Mr. S. De for Appellant Mr. S.B. Prabhawalkar for Respondent No.3 M.B. Shah, J., President : Can a consulting doctor (radiologist) defend an apparent
mistake in noticing a tumor on the basis of MRI film by contending that MRI was takenby a senior resident doctor, despite the fact that the said report is endorsed by the consultingdoctor by mentioning that the tumor was at D10-11 position outside the spinal cord? 2. In our view, such defence cannot be accepted. The consulting radiologist who
signs the report is responsible for misreading or not reading/looking at the MRI film correctly.
In such a case, this would be gross negligence. It is the duty of the consulting doctorto correct such errors.
3. This appeal is filed by the Bombay Hospital & Research Medical Centre, Mumbai,
against the judgment and order dated 17.12.1997 passed by the State Consumer DisputesRedressal Commission, Maharashtra, in complaint No.89/94 directing the hospital onlyto pay a sum of Rs.1,30,000/- as compensation and Rs.5,000/- by way of costs to theComplainants 1 and 2. Complaint against Dr.(Ms.) Meher Dadachaji and Dr. Keki Turel,Neuro Surgeon, was dismissed.
4. In this appeal it is the contention of the Hospital that only the Radiologist would
be liable to pay the compensation because of negligence on her part. With regard toNeurologist, it is contended that he is no more.
5. It was contended that Complainant No.1, Ms.Sharifabi Ismail Sayed, developed
suspected tumor in her back outside the spinal cord and was having difficulty in walking,but could sit comfortably. For that, she was admitted to one Masina Hospital under Dr.Modi.
But, thereafter, Dr.Modi referred her to Bombay Hospital for diagnosis and treatment,as that hospital was having reputation for sophisticated diagnostic methods and surgicalexpertise. MRI (Magnetic Resonance Imaging) Scan was carried out on 20.5.1993. Scannedfilm was examined by Dr.(Miss) Mehar Dadachanji, Respondent No.3, in this appeal,and in her report she had indicated presence of tumor at D10-11 position, outside thespinal cord. She referred the MRI film to Respondent No.4, Dr.Turel, who is a NeuroSurgeon. On the basis of the MRI report, the Complainant, Ms.Sharifabi Ismail Sayed,was taken for operation for removal of tumor at the side D-10-11 on 24.5.1993. Notumor was found at D-10-11 as noted in the MRI film. Dr.Turel also sent a portion ofthe issue for pathological testing and it was found to be benign. Dr.Turel informed Dr.
Bombay Hospital & Medical Research Centre Versus Sharifabai Ismail Syed Dadachanji that no tumor was found at D-10-11 side and that surgical adventure wasof no utility for the patient.
6. On account of this, on 3.6.1993, under the supervision of Dr.Dadachanji, another
MRI was carried out and as per the report tumor was noted at D-7-8 position. Hence,on 4.6.1993 second operation ‘laminectomy’ was performed which lasted for about 6hours, and, according to Dr.Turel the tumor was removed. For this purpose, the Complainantwas required to stay in the hospital from 21.5.1993 to 28.6.1993 and was required toincur heavy expenditure for medical treatment.
7. On the basis of the aforesaid facts, it was contended that there was gross negligence
on the part of the hospital and the doctors in performing the uncalled for operation. Hence,Complaint No. 89 of 1994 was filed before the Maharashtra State Consumer DisputesRedressal Commission, claiming a sum of Rs.5,83,888/-.
8. That complaint was partly allowed and the Appellant, Bombay Hospital, was
directed to pay a sum of Rs.1,30,000/- as compensation to the Complainants with Rs.5,000/- as costs.
9. Against that order, the Bombay Hospital has preferred this appeal, mainly con-
tending that the hospital was not liable for the deficiency in service rendered by the doctors,namely, Dr.Dadachanji and Dr.Turel. Learned counsel for the Appellant Hospital submittedthat if Dr.Dadachanji has committed the error in interpreting the MRI film she wouldbe responsible for the deficiency in service and not the hospital. He further contendedthat as per Rule 14 of the Rules and Regulations framed by the hospital, the entireresponsibility of the treatment of the patient lies exclusively with the consultant underwhom the patient is admitted, in case of proven mal-practices, negligence or mis-management.
10. As against this, Complainant No.2 who is appearing in person submitted that
not only the hospital but the doctors are equally responsible for the deficiency in service.
He heavily relied upon the second MRI report which is produced on record stating thattumor was at D-7-8 of the spinal cord. He also contended that it was the duty of theNeuro Surgeon to scan the MRI film before proceeding with the operation.
11. As against this, learned counsel for Dr.Dadachanji submitted that there was no
mistake on her part because there was a standard protocol by which the Senior ResidentDoctor, on duty, was to carry out the scan. The scan was actually performed by a technologistand the entire procedure was supervised by the Senior Resident Doctor.
12. The attending Consultant, namely, Dr.Dadachanji was not required to routinely
monitor the scan as she has to attend other duties in the hospital. The consultant relieson the Senior Resident Doctor who is a qualified Radiologist to perform a complete andaccurate scan of the patient. The consultant is mainly concerned with making the reporton the scan taken and the duty of the consultant is purely confined to preparation ofreports on test carried out by others. It is pointed out that the consultant neither carriesout the test nor identifies the pathological levels nor supervises the same and she is notthe administrative head. It is contended that when the final films are documented fromthe computer monitor, only detailed views of the spine are provided, and, these are presumedto be correctly labelled by qualified Radiologist, i.e. the Senior Resident Doctor. Theseare, therefore, placed before the Consultant and the Consultant makes report on thebasis of the final lablled film put up before him/her by the Senior Resident Doctor. Itis contended by the learned counsel for Dr.Dadachanji that because of the wrong labellingby the technicians, the mistake occurred, and, therefore, she is not at all responsible.
13. On behalf of the Neuro Surgeon, Respondent No.4, before the State Commission,
it is contended that he performed the operation on the basis of the MRI scan report toremove the tumor.
14. In appeal, on behalf of Dr.Dadachanji an affidavit has been filed on 8th May,
(1) With a mala fide intention and ulterior motive to disown its liability vis-à-vis the acts of para-medical staff of the hospital, bald, baseless, and frivolous allegationsappeared to have been made against her in the grounds of appeal on behalfof the hospital without substantiating the same; (2) The hospital appointed her as a specialist in MRI to interpret the MRI scan, placed before her by the technicians and doctors employed by the hospital; (3) It is the technician’s job to perform and reveal the scan correctly; (4) She was expected to ensure a daily output of at least 20 to 25 cases; and, (5) Appellant hospital more often than not employ technicians not technically qualified who did not even hold a basic science degree.
15. It is further submitted that her contentions are supported by the affidavit filed
by Dr.Jimmy Nadershaw Sidhva an eminent Radiologist of international repute.
16. At the outset we have to state that the State Commission has rightly observed
that the case was to be decided in the back drop of almost all admitted facts.
17. For appreciating the contentions we would first refer to the report dated 20th
May 1993 signed by Respondent No.3, Dr.Dadachanjani, which is as under : “Plain and post contrast MRI of the dorsal spine was performed using serial sectionsin sagittal and axial planes. Both T1 and T2 weighted images were obtained.
In homogeneous enhancing heterogeneous mass is seen in the dural space on theleft side at D-10-11 The mass is isointense on the T1 weighted images and showsmultiple hypointensities within it on the T2 weighted images. These hypointensitiesprobably represent areas of clarification within it.
There is extension of the mass into the left neural foramina at the D-10-11 level.
There is no extension beyond the neural foramina.
Conclusion : Inhomogeneous, mixed sigma, intensity intradural mass within the leftlateral dural space at D-10-11 which causes significant cord compression. This couldeither be a meningioma or a neurofibroma, the former being more likely”.
18. Further, on the basis of the complaint, an inquiry was held by the Secretary,
Association for Consumer Action on Safety of Health and it submitted its report on18.5.1996, after recording the statements of the concerned persons.
“I. I have gone through the file and films submitted by you and gather the followingfacts : Ms.Sharifa Ismail Sayed, aged 67, was suspected, in May, 1993, to have a tumourin the spinal canal and was referred by Dr.D.K.Mody at Masins Hospital to the Bombay Bombay Hospital & Medical Research Centre Versus Sharifabai Ismail Syed Hospital for investigation and treatment. When she was sent to the Bombay Hospitalthere was difficulty for her to walk. The first magnetic resonance scan (MR) at theBombay Hospital was reported to show a meningioms or neurofibroma at D-10-11on the left side. Mr.Rafique Sayed’s note dated 26th June, 1993, addressed to theMedical Director, Bombay Hospital, states that on 25th May, 1993 the first laminectomy(D-10-11) was performed by Dr.Keki Turel. No tumor was found. A small portionof the spinal cord was sent for histology. The second MRI on 3rd June, 1993 (reportbears the date 20 May 1993) showed laminectomy defects at D-8, D-9 and D-10levels along with mild swelling of the spinal cord. A meningioma or neurofibromawas seen just above the superior margin of the laminectomy on the left at D-7-8.
The second laminectomy D-7-8 was carried out by Dr.Turel and a tumor was removed.
We are told that the physical condition of the patient has worsened after the twooperations and that she is bed-ridden, complaining of pain in the back shooting intothe legs. The Complainant wonder whether it was necessary to open the spinal cord,especially when consent for doing so was not taken, the consent having been givenonly for the removal of a tumor outside the spinal cord.
2. Statement made by Dr.Meher Dadachanjani: Dr.Dadachanjani states that according to protocol in the MR Department, she relieson the senior resident doctor to perform the scan, her role being limited to reportingon the completed scan and consultation. When scans of the spine are carried out,the localization of the level of the disease is made using a large coil. As a routinethis image, proving the location of disease, is not provided to the consultant on thefinal film. The consultant thus makes the report based on the senior resident’s iden-tification of the level. During the second scan, however, she was present when thescan was done and found the tumour lying at D-7-8 and not at D-10-11 as reportedearlier. She states that the error in the earlier report followed ‘incorrect labeling bythe resident doctor’.
1. “Is it possible to misjudge the level of the tumour on MR? Dr.Dadachanji has clearly stated in her report that an error was made in the reporton the first MR. This was attributed by her to incorrect labeling by the resident doctor.
2. Is it proper and correct for the Neuro Surgeon to open the spinal cord when the tumour was not found at the expected site? I have studied the MR scan dated 20th May, 1993 and find the tumour clearly outsidethe spinal cord. Under such circumstances, I would not have opened the spinal cordbut would, instead, have checked two levels above and below the site of exploration.
However, we must also lend credence to Dr.Turel’s finding of swelling of the spinalcord. Under such a circumstance, it is not wrong to take a small piece for histologyto ensure that we are not missing an additional lesion within the cord.
An additional point to be made here is that despite the best efforts of the treatingclinician it is not possible to envisage each and every eventuality and seek consentfor each and every step that may be necessary. Several additional steps are takenin many operations in good faith and in the best interests of the patient. Were wetake consent for each and every such step, the consent form would be several sheets long and prove meaningless to the patient and relatives. It is also not possible tointerrupt an operation to take consent for a particular step made necessary by anunforeseen circumstances.
3. Is it the ethical responsibility of the surgeon to check the correct level of the tumour? When we demarcated the level of disease using plain x-rays and myelograms, it wasalso the surgeon’s responsibility to check the level. The high-technology CT and MRscanners disallow such a confirmation by the surgeon in each and every case andwe often have to abide by the report of the CT or MRI expert.
4. Is failure to judge the correct level is a ‘failure to exercise reasonable skill and This is a matter for the judge to decide. As a neurosurgeon, I consider failure to clearlyand correctly demonstrate the level of a tumour within the spinal canal a seriouserror. Marking the level of the tumour wrongly misleads the surgeon and, as in thiscase, leads to fruitless operation at a wrong level. A second operation – with all attendantrisks – then becomes necessary to remove the tumour.
5. Is the explanation given by the concerned radiologist correct? I find the system followed at the BombayHl’ faulty. The hospital places all theresponsibility on the consultant in the MR department – in this case Dr.Dadachanjani– and washes its hands off the matter. Dr.Dadachanjani tells us that the protocolin the MR Department dictates that the consultant will not be present whilst the MRscan is being done. The MR scan is done by a senior resident. Whilst Dr.Dadachanjaniplaces the responsibility for correct identification of the level of disease on the seniorresident, the hospital rule clearly places the onus on the consultant – in this caseDr.Dadachanjani.
I feel that if the responsibility is to be that of the consultant, it is up to the consultantto ensure that there is no mistake. Whilst the senior resident may do the scan, beforetaking the patient off the scanner, the consultant must be called in to make sure thatno error is made.
The protocol followed by the MR Department at the Bombay Hospital lends itselfto grave errors.”.
19. From the admission in the aforesaid report as well as the defence taken by
Ms.Dadachanji, it is apparent that she was not vigilant in verifying whether the labellingmade by the Radiologist, i.e. the Senior Resident Doctor, was correct or not. A seniorconsultant is not expected only to sign whatever the junior medical staff suggest. If thatis so, there is no use of having Consultant in the Hospital.
20. As against this, Respondent No.2 has relied upon the affidavit of Dr.Jimmy
“The hospital is responsible for providing infrastructure services which include space,machinery and consumables for the purposes of MRI scanning. It is also responsiblefor providing the technical personnel and the junior medical staff for carrying outthe scan procedure including film processing and film labelling which includes correctpatient identification, left/right side identification and scan level labelling.
The consultant radiologist is thereafter responsible for viewing the completed scan Bombay Hospital & Medical Research Centre Versus Sharifabai Ismail Syed and interpreting the films presented to him. The consultant radiologist is not responsiblefor checking / overseeing the scan procedure (including film processing and labeling).
His responsibility / duty begins and ends with correct interpretation of, and reportingon the films / scan images presented to him by the hospital (i.e. the technician andjunior medical staff).
21. The aforesaid affidavit clearly reveals that the duty of the consultant begins and
ends with correct interpretation of report of the films and scan the images presented tothe consultant by the hospital, i.e. technician and junior medical staff. This would meanthat the Consultant is required to interpret the MRI film and not to merely sign withoutreferring (reading) the same. Consultant is the expert in the filed. If he/she commits mistakeor error in interpreting, it is his/her responsibility or liability.
22. Further, there is no dispute with regard to the MRI that was taken for the second
time when tumor was found at D-7-8 levels, and hence, the second operation had tobe performed.
23. In this view of the matter, it is apparent that the State Commission committed
an error apparent on the face of the record in holding that the consultant cannot beheld responsible for the error committed, in signing the report, on the basis of notingby the Senior Resident Doctor (Radiologist). In our view, entire responsibility lies withthe Respondent No.3, Dr. Dadachanji because she was in-charge of the RadiologicalDepartment.
24. At this stage, we would reproduce the observations made by the Apex Court
in Spring Medows Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at47, wherein the Apex Court has specifically laid down the principles for holding Doctorsresponsible in similar situation. The Apex Court held that : “Gross medical mistake will always result in a finding of negligence. Use of wrongdrug or wrong gas during the course of anaesthetic will frequently lead to the impositionof liability and in some situations even the principle of re-ipsa –loquitur can be applied.
Even delegation of responsibility to another may amount to negligence in certaincircumstances. A consultant could be negligent where he delegates the responsibilityto his junior with the knowledge that the junior was incapable of performing of hisduties properly. We are indicating these principles since in the case in hand certainarguments had been advanced in this regard, which will be dealt with while answeringthe questions posed by us.” 25. Further, with regard to the responsibility of the hospital, in our view, there is no
substance in the contention of the Appellant that in view of the internal rules and regulationsframed by the hospital the hospital would not be liable for the deficiency in service renderedby the doctor appointed by it. The reliance upon Rule 14 is of no consequence to thepatients who are admitted in the hospital.
26. It is the patient or the Complainant who approaches the hospital for treatment
and hence the primary liability in case of deficiency in service is that of the hospital.
Doctors working in the hospital are its employees. Further, from the record it is apparentthat the Senior Resident Doctor (Radiologist) appointed by the Hospital committed ablunder which resulted in wrong reporting by the Consultant. Therefore, if there is deficiencyby the doctor, then, it would the be the joint and several liability of the hospital andthe Doctor.
27. In this view of the matter, we partly modify the order passed by the State Commission
and hold that the hospital as well as Dr. Ms.Dadachanji are jointly and severally liableto pay the compensation and costs as ordered by the State Commission. We also awardRs.10,000/- as costs to be paid to the Complainant by the appellant – Hospital and MissDadachanji - Respondent No.3 jointly and severally.
The appeal is disposed of accordingly.
CMCL 930z
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT, MR. S.K. NAIK, MEMBER Haryana Institute of Fine Arts & Ors.
Consumer Law—Consumer Protection Act, 1986—Section 2(1)(g)—Cul-
tural Fair "Mela"—Negligence—Determination of—Held—Negligence is a failure
to observe, for protection of the interest of another person the degree of care,
precaution and vigilance which the circumstances justly demand—Organiser
of fair would be equally liable to pay compensation. [Para—20]
Counsel :
Mr. Manoj Swarup and Mr. Ajay Gupta for Petitioners M.B. Shah, J., President : Petitioner No.1, Haryana Institute of Fine Arts (NGO
as claimed) took some land on hire of a sum of Rs.7,500/- for five days from the HaryanaUrban Development Authority for organizing a fair (Phulwari Children Bazar) at Karnalfrom 12th to 16th November, 1996. Petitioner No.2 was the Project Director of the ChildrenCarnival organised by the Petitioner No.1.
2. On 15th November, 1996, the Complainant along with his wife and two children
visited the carnival. They purchased tickets at the rate of Rs.10/- per person for boardingmerry-go-round from Respondent No.2, who has installed the electrical swings (Jhoolas).
It is contended that Respondent No.2, Ali Hussain, was the owner of the said electricalswings and Respondent No.3, Ahmed Ali was the driver of the Jhoola. After the Complainantalong with his children boarded the merry-go-round, it started moving around the fulcrumat a high speed. Suddenly, the seat on which the Complainant and his family were seated,got detached and hence they were flung away at a distance of 15 yards on a hard surface,resulting in injuries to them.
3. Hence, complaint No.210 of 1997 was filed before the District Forum, Karnal,
claiming a compensation of Rs.4 lakhs for the injuries sustained and the expenditure incurred Haryana Institute of Fine Arts versus Rajesh Mani Kaushik for treatment, against the Petitioner and the owners of the merry-go-round.
4. The District Forum vide its order dated 17.3.1998 allowed the complaint and directed
the Respondent No.2 and 3, i.e. the owner and the Driver of the Jhoola to pay damagesof Rs.20,000/- to the Complainant. The complaint against the Petitioner No.1 and thePetitioner No.2, i.e. the Haryana Institute of Fine Arts and the Project Director was dismissed.
5. Against that order the Complainant preferred Appeal No.435 of 1998 against
the Haryana Institute of Fine Arts for enhancement of compensation. The owner of theJhoola, Ali Hussain, has also filed Appeal No.439 of 1998 against the Complainant,before the State Commission. The State Commission allowed the appeal No.435 of 1998filed by the Complainant and dismissed the Appeal No.439 of 1998 filed by the ownerof the Jhoola. While allowing appeal of the Complainant, the State Commission enhancedthe amount of compensation from Rs.20,000/- to Rs.1,00,000/-. It also held that PetitionersNo.1 and 2, i.e. the HIFA and its Director were also jointly and severally liable to paythe said amount along with Respondent Nos. 2 and 3, i.e. the owner and the driver ofthe Jhoola.
6. Feeling aggrieved the HIFA and its Director are in revision before us.
7. In this Revision Petition, the question which requires consideration is whether the
finding recorded by the State Commission that Petitioners No.1 and 2 who organizedthe carnival were liable to compensate the Complainant for the deficiency in service? 8. In the present case, it is not disputed that the Phulwari Bal Bazar was organized
on a piece of open land which was taken on rent by the Petitioner No.1 for a sum ofRs.7,500/- for a period of 5 days from the HUDA. On the said land Petitioners organizednumber of entertainment programmes for 50,000 school children. The brochure specificallyprovides, as under : “Special attraction on ‘Phulwari’ will be the display of traditional artforms of India,stage performances, swings, fountains, fun and food, handicrafts, exhibition-cum-sale of children products, etc., as national highway No.1 is close to the venue, ‘Phulwari’will attract the travelers and the people from the connecting cities also.”] “A Promotional Bonanza – Discount Coupon Scheme: HIFA has designed a unique scheme for the promotion of the children products –“The Discount Coupon Scheme”. Company will provide 50,000 discount couponsof their product which will be distributed among the children. Details is enclosed” 9. It is also not disputed that a number of entertainment sales including sale of food
products were installed in the said premises, as per the brochure. The Exhibitors Scopesas under: 10. This would mean that the Petitioners got installed number of stalls in the premises
by charging various amounts. To that extent it would amount to business.
Haryana Institute of Fine Arts versus Rajesh Mani Kaushik 11. It is not disputed that the Petitioner No.1 had permitted Respondent No.2 to
install an electrical swing on the portion of the land by charging a sum of Rs.10,000/- which includes the cost of electricity. This would indicate that for a small piece of land,for a few days, Petitioners shall receive large amount and that is their profit. It is alsonot disputed that for taking a seat on the electrical swing Complainant was required topay a sum of Rs.10/-.
12. It was mainly contended by the learned counsel for the Petitioner No.1 that it
has not charged any fee for those persons who are visiting and that they were not havingany supervisory authority over running the merry-go-round in question. Hence, the Com-plainant was not consumer qua the Petitioners.
13. In our view, a person who organizes such a fair or mela, would be liable for
the deficiency in service rendered by the owner of the merry-go-round. The reason is itis the organiser’s responsibility to take precautions in Phulwari Mela that no such untowardincident occurs and such machines are properly installed.
14. Further, considering the organization of fair (Mela) wherein a number of stalls
were to be installed for sale of various items is undoubtedly a business venture undertakenby the Petitioners. The business venture was for sale of various items or for providingvarious services. One of the services would be electrical swing, namely, merry-go-roundfor which entrance fee is required to be paid. Therefore, there is no doubt that thosewho have installed the electrical swing would be liable.
15. The next question is whether the organizers would be liable?
16. In the present case, it is not disputed that the Petitioners have charged a
heavy amount of Rs.10,000/- from the persons who have installed the electrical swings.
Recovery of Rs.10,000/- from Respondent Nos. 2 and 3 by the Petitioner would amountto indirect charging of fee from the Complainants and many other persons who availthe services of the electrical swings. Petitioners have paid only Rs.7,500/- for 5 days asrent, and, thereafter, recovered various amounts from other persons who have installedstalls for various items as mentioned in the brochure which is quoted above. Therefore,the Petitioners as well as the Respondent No.2 and 3 are jointly service providers.
17. Further, it was the duty of the Petitioners to supervise such equipments which
are installed in the premises taken by them on rent are safe. They were in controlof the entire fair - Phulwari Children Bazar. Further, had they taken such care andprecaution, such an untoward incident would not have happened. Fortunately, thechildren of the Complainant were not severely injured. Hence, the Petitioners wouldbe liable for the deficiency in service.
18. Mr. Manoj Swarup, learned counsel appearing for the Petitioners relied upon
the decision rendered by the Apex Court, i.e. Municipal Corporation of Greater BombayVs. Laxman Iyer & Anr. (2003) SCC 731 and submitted that there was no negligenceon the part of the Petitioners. In our view, this judgment is not of help in any way.
In the said judgment it has been observed : “…. Negligence is omission of duty caused either by an omission to do somethingwhich a reasonable man guided upon those considerations, who ordinarily by reasonof conduct of human affairs would do or be obligated to, or by doing something whicha prudent or reasonable man would not do. Negligence does not always mean absolutecarelessness, but want of such a degree of care as is required in particular circumstances.
Negligence is failure to observe, for the protection of the interests of another person,the degree of care, precaution and vigilance which the circumstance justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictlycorrelative. Negligence means either subjectively a careless state of mind, or objectivelycareless comparative term. No absolute standard can be fixed and no mathematicallyexact formula can be laid down by which negligence or lack of it can be infalliblymeasured in a given case. What constitutes negligence varies under different conditionsan in determining whether negligence exists in a particular case, or whether a mereact or course of conduct amounts to negligence, all the attending and surroundingfacts and circumstances have to be taken into account. It is absence of care accordingto circumstances….” 19. Further, in the case of Rajkot Municipal Corporation & Ors. Vs. Manjulben
Jayantilal Nakum & Ors. (1997) 9 SCC 552 , the Apex Court, in regard to negligence,held as under : "28. At the cost of repetition, we may reiterate that negligence is the omissionto do something which a reasonable man, guided upon those considerations whichordinarily regulate the conduct of human affairs, would do, or doing somethingwhich a prudent and reasonable man would not do. The defendants might havebeen liable for negligence, if, unintentionally, they omitted to do that which areasonable person would have done, or did that which a person taking reasonableprecautions would not have done”.
20. The aforesaid judgments make it clear that the negligence is a failure to observe,
for the protection of the interests of another person, the degree of care, precautionand vigilance which the circumstance justly demand. Applying the aforesaid test, itwas the duty of the Petitioners to take care that equipments which are installed forfun or entertainment are properly managed and are of standard quality so that mishapdoes not occur. Therefore, in the present case, it is absence of care on the part ofthe Petitioners which had led to the mishap.
21. Further, the Petitioners have undertaken a business venture may be in the
name of cultural fair (Mela) but undoubtedly, it was for a large profit and they were,therefore, expected to regulate affairs in the fair, which a prudent and reasonableman is expected to take so that there is no occurrence of such mishap.
22. The word ‘deficiency’ is defined in Section 2(1)(g) of the Consumer Protection
Section 2(1)(g) — “deficiency” means any fault, imperfection, shortcoming orinadequacy in the quality, nature and manner of performance which is requiredto be maintained by or under any law for the time being in force or has beenundertaken to be performed by a person in pursuance of a contract or otherwisein relation to any service; 23. The said definition of the word ‘deficiency’, inter alia, provides that deficiency
would mean any imperfection in the manner of performance which is required to bemaintained in pursuance of the contract or otherwise in relation to any service. Therefore,who have organized the fair (Mela) on such a large scale were required to take propercare and precautions in seeing that service providers permitted by them takes proper careand caution in protecting the consumers who spend amount in getting entertainment.
As that is not done, it would amount to deficiency in service by the Petitioners.
24. In this view of the matter, there is no substance in this revision and, therefore,
it is dismissed. There shall be no order as to costs.
Tamil Nadu Housing Board versus Sea Shore Apartments Owners Welfare CMCL 930ae
SUPREME COURT OF INDIA
HON’BLE C.K. THAKKER AND P. SATHASIVAM, JJ. Sea Shore Apartments Owners Welfare Association Consumer Protection Act, 1986 (Amendment Act 50 of 1993)—Section
2(1)(o)—Housing construction—"Service" thereof—Held—Object of Section
2(1)(o) of Act 1993 inclued "Housing construction" and its service within the
scope of section and the commission had jurisdiction to deal the connected
disputes. [Para—17, 27 and 30]
Land Acquisition by State—Legality under—Held—When private under-
taking are taken over by State or its instrumentalities any attempt to exclude
the services offered by such statutory bodies to the common man from the
application of the Act 1993 must be discouraged. [Para—20]
Case Referred :
1. National Commission in Gujarat Housing Board v. Akhil Bhartiya Grahak Panchayat 2. Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 2433. Premji Bhai Parmar v. Delhi Development Authority (1980) 2 SCC 1294. Bareilly Development Authority v. Ajai Pal Singh (1989) 2 SCC 1165. R.D. Shetty v. International Airports Authority (1979) 3 SCC 4896. Chief Administrator, PUDA v. Shabnam Virk (2006) 4 SC 74 Counsel :
V. Krishnamurthy, Sr. Adv., H. Harish Kumar, Dr. R. Prakash and P.N. Ramalingam,
Advs. for Appellants
M.N. Rao, Sr. Adv., K.K. Mani, C.K.R. Linin Shekar and Mayur R. Shah, Advs. for
Respondent
JUDGMENT
C.K. Thakker, J. :
1. The present appeals are filed against an order passed by the State Consumer
Disputes Redressal Commission, Madras (‘State Commission’ for short) on July 24,1995 in Original Petition Nos. 143-149 of 1995 and confirmed by the National Con-sumer Disputes Redressal Commission, New Delhi (‘National Commission’ for short) onFebruary 25, 2002 in First Appeal Nos. 500-506 of 1995.
2. Shortly stated the facts are that the Tamil Nadu Housing Board (hereinafter
referred to as ‘the Board’) was constituted under the Tamil Nadu Housing Board Act,1961 (Act 17 of 1961). The primary object of creation of the Housing Board was toacquire land in the neighbourhood areas of developed cities at a reasonable price andto construct tenements, houses and flats thereon for providing residential accommoda-tion to needy people of different income groups and categories. In the year 1982, vastpiece of land admeasuring about 28 acres of Thiruvamiyer, Chennai was acquired bythe State of Tamil Nadu under the Land Acquisition Act, 1894 for a public purpose,viz. for the development of the area known as South Madras Neighbourhood Scheme.
On February 27, 1991 the Board approved a proposal to construct seven different typesof flats. It proposed to construct 102 flats under its High Income Group Scheme (‘HIGScheme’ for short). In order to assess demand from public, an advertisement was issuedby the Board on March 21, 1991 inviting applications for registration under the title'Avail a chance of owning your own flat' in Thiruvanmiyur Extension, Madras. Seventypes of flats were mentioned in the said advertisement along with plinth area, tentativeprice, initial deposit, monthly instalment, repayment period, amount of deposit for reg-istration, etc. It was stated that pursuant to the said advertisement applications were made by interested persons. There was overwhelming demand and several persons ap-plied. The record reflects that finally instead of seven types of flats, fifteen types of flatswere constructed under HIG Scheme. The Board issued letters on August 13, 1993 tothe applicants asking them whether they were willing to purchase flats. Necessary detailsof the type, design, plinth area, tentative selling price and other particulars were sup-plied. Draw was conducted on October 15, 1993 and provisional allotment letters wereissued on October 19, 1993. Tentative cost was specified in the letter which was to bepaid within a period of 21 days. Final allotment order was made on August 9, 1994wherein final cost of the flat was mentioned. An agreement was entered into betweenthe Housing Board and allottees on August 22, 1994. In the said agreement, it wasmentioned that it was agreed between the parties that the ultimate cost of the totalconstruction of the flat was subject to the outcome in the award of compensation inland acquisition proceedings pending adjudication and the final amount will be fixedon that basis which will be paid by the members. Thereafter possession of flats wasgiven to all allottees. The members were then asked to pay additional amount. Therespondent-Sea Shore Apartments Owners Welfare Association [‘Association’ for short]felt that the demand made and amount recovered by the Housing Board was neitherlegal nor proper. It could not have demanded more amount. The amount which wasfixed earlier was already paid and the members of the Association were not treatedfairly. It, therefore, made representation on December 26, 1994 against the additionalamount. In the said representation, the Association asked the Board to give reasons forenhancement of price of flats as also for reduction of period of payment of instalmentsfrom 15 years to 13 years. The Board, however, did not reply to the said letter. Evensubsequent letter was not responded. Seven complaints were, therefore, filed by theallottees before the State Commission on May 26, 1995 under Section 12 of the Con-sumer Protection Act, 1986 (hereinafter referred to as ‘the Act’). Prayers were made inthe complaints to direct the Board and its officers to return the escalation amount paidby the members of the Association with interest thereon; to restrain the Board and itsofficers from insisting on payment of excess amount as demanded; to direct the Boardto collect the instalments in 15 years as per the order of allotment issued earlier; to paycompensation of rupees one lakh for the loss sustained and mental agony suffered bythe members of the Association and to pay costs of the complaints. It was also statedthat the complainants had claimed relief for those members also whose names hadbeen given in the Annexure to the complaints.

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