BASANT SETH Vs. REGENCY HOSPITAL LTD

JUDGEMENT

(1.) Complainant is the son of Mrs. Krishna Seth who died on 31.10.1993 in the opposite partys hospital. Complaint is that the death was due to gross negligence on the part of the Regency Hospital Ltd. (for short Hospital). This complaint was filed on 28.4.1994. Admittedly when the complaint was filed, father of the complainant (husband of the deceased) was alive and the deceased was also survived by her other son. Neither his father nor his other brother are parties to this complaint. During pendency of the complaint it is stated that the father expired. During the course of arguments when this flaw in the complaint was pointed out, an application was filed on 16.10.2001 to bring on record Mr. Amar Seth, brother of the complainant also as a complainant. Since no objection was raised by the opposite party -Hospital, memo of parties was allowed to be amended and Amar Seth was added as second complainant.

(2.) COMPLAINANT is claiming damages on two counts. Rs. 40.00 lakhs towards causing untimely death of Krishna Seth due to gross negligence and deficiency in service on the part of the Hospital including the doctors and nurses and for the mental agony undergone during the treatment by the family and refund of expenses of Rs. 35,166/ - incurred by the complainant on the treatment of his mother at the Hospital where she died. Out of compensation of Rs. 40.00 lakhs, Rs. 30.00 lakhs are on account of negligence and deficiency in service and Rs. 10.00 lakhs on account of mental agony and torture suffered by the complainant and his relations during the treatment of his mother. As far as claim for refund of expenses is concerned we find there are particulars given in the complaint. But as to how complainant has arrived at the amount of Rs. 30.00 lakhs and Rs. 10.00 lakhs on account of alleged negligence and mental agony suffered by him and other family members, nowhere it has been spelt out in the complaint. Though father of the complainant is not alive today but he did not prefer any claim for loss of consortium of his wife on the alleged negligence of the Hospital.

(3.) IN the first paragraph of the complaint, complainant has alleged that death of his mother took place due to the negligence on the part of the Hospital. In the body of the complaint and the prayer he attributes negligence and deficiency of service not only on the part of the Hospital but to the doctors and Hospital staff. Doctors against whom negligence is alleged are not parties to this complaint. To hold the Hospital vicariously liable on account of negligence of the doctors it was imperative for the complainant that doctors are impleaded as opposite parties and they get opportunities to defend themselves. That not having been done, Hospital cannot be held vicariously liable for alleged negligence on the part of the doctors. As a matter of fact as we see the sequence of events and the record of treatment rendered by the doctors, that itself would show how uncharitable complainant has been in attributing negligence to the attending doctors who did their best in attending on Krishna Seth. Apart from those doctors there are three doctors namely, Dr. K.M. Seth, Dr. Sharad Seth and Dr. K.K. Kapoor who are closely related to the complainant and all of them, according to the complainant himself, used to visit Hospital almost everyday to see Krishna Seth. Affidavit of none of these three doctors has been filed by the complainant as in our view they would have been the best persons to tell us if there was any negligence on the part of the attending doctors or the Hospitals staff in treating Krishna Seth. No sufficient cause had been given as to why these three doctors who are relatives of the complainant have not been produced by the complainant and on this score alone we would draw an adverse presumption against the complainant that had they been produced they would not have supported the case of the complainant.