NEERAJ AMARNATH DORA Vs. NANDAN HOSPITAL

JUDGEMENT

(1.) The review application which was placed by circulation in accordance with Regulation 15 (2) of the Consumer Protection Regulations, 2005 could not be taken up by the bench, which had passed the order sought to be reviewed as one of the Members (Dr. P.D. Shenoy) had since relinquished charge on expiry of term of appointment on 6.1.2010. The review application was placed before us and we have heard the Counsel for the OP as also authorized representative of the complainant.

(2.) The complainant has filed these proceedings alleging negligence on the part of. OPs on account of death of his wife. The case of the complainant is that his wife was admitted in OP No.1 hospital for diagnostic laproscopy and OP No. 2 while performing laproscopy negligently damaged a major blood vessel causing extreme loss of blood and cardiac arrest resulting in the death of his wife. As against OP No.3, allegations are found in para No. 15 and in para No.27. In para No. 15 it is stated that OP No.3 who had also been called to the operation theatre performed subdiaphragmatic cardiac massage of the wife of the complainant and even though the cardiac physician Dr. Kazi was present and was more competent and qualified for the same. In para No.27 it is stated that there was further negligence on the part of the OP No. 2 & 3 by not transfusing blood timely and in sufficient quantity despite cardiac arrest due to excessive loss of blood and not taking further steps including arranging a Vascular Surgeon to save the life of the complainants wife. The OP No.3 died during the pendency of the proceedings on 25.2.2009. The complainant, therefore, filed an application for condonation of delay, setting aside of abatement and for bringing his legal heirs on record. It may be mentioned here that two of the legal heirs of OP No.3 are already on record being OP No.1, Smt. Nirmala R. Shelat, Proprietor of OP No.1 and Dr. Ramesh K. Shelat, father of OP No.3. The daughter of OP No.3 was sought to be brought on record by filing the said application. In fact, after hearing the parties, it was held that:

(3.) The above order is sought to be reviewed by the application under consideration on the ground that the said order has been passed without taking into consideration rulings relied upon by the OP. The Ld. Counsel for the OP had relied upon the rulings of the Andhra Pradesh High Court in G. Jayaprakash v. State of Andhra Pradesh, 1977 AIR(AP) 20 and ruling of this Commission in Balbir Singh Makol v. Chairman, Sir Ganaa Ram Hospital and Ors., 2001 1 CPR 45. The OPs have also placed reliance on the said rulings in the review application in support of the proposition that the right to sue does not survive in a case of medical negligence and the legal heirs cannot be ordered to be brought on record. In the reply filed by the complainant it is stated that the matter cannot be reviewed as there is no error apparent on the face of the record and secondly, reliance has been placed on the observations made in the case of G. Jayaprakash v. State of Andhra Pradesh to the effect that where a tort feasor's estate is benefited by the wrong doer, an action would lie against the representative of a wrong-doer.