KALPANA BEN Vs. KALPESH V. PARIK

JUDGEMENT

(1.) Hard is the task of justice where distress excites our mercy, yet demands redress. Adumbrated in brief, the facts of this complaint case are as below. Ashokji Bhai Choudhary died due to the gross negligence of Dr.Kapilsesh V. Parik, OP 1 and Dr.Naresh Bhai Gandhi, OP2. The present complaint has been filed by the wife, children and the mother of the deceased Ashokji Bhai Choudhary. The deceased was working as Deputy Superintendent in the Western Railways, Government of India . He was 33 years' old at the time of his death. The deceased was suffering from piles. The deceased complained of pain, 15 days' prior to his death. He came to his native land, Godhara, on account of Diwali festival. One, Manoj Bhai Chagan Bhai Chauhan recommended to him OP 1 for the treatment of piles as he used to do the operations under Kshar Shutra Therapy. He also apprised him of the fact that he himself had undergone such an operation which was successful.

(2.) The deceased approached the OP 1 on 05.11.1999 during the morning hours. The deceased was advised to undergo the operation of piles by 'Kshar Shutra Therapy'. The deceased was operated upon at 3.00PM on the very same day. On the same day, OP 2, Dr. Naresh Gandhi gave anaesthesia during the treatment to the deceased and OP 1 operated the said deceased. The condition of the deceased worsened. The complainants were asked to look after the deceased. OPs did not attend the deceased. The complainants observed that the deceased was shivering. The condition of the deceased further deteriorated. The deceased was again taken to the operation theatre. OP 2 was not available. OP 1 consulted another Dr. Mukesh Bhai. In the meantime, the deceased died on the patient's bed itself. It is alleged that the deceased died due to negligence of OP 1 & 2. No efforts were made to revive the deceased by doing the external cardiac massage till the patient was alive. It was further alleged by the Complainants that the OP 1 holds a Degree of B.A.M.S., K.R.C. (G.A.U) and without the help of an MD Surgeon, OP-1 cannot perform any surgery. A criminal case was registered, at about 10.15 PM and the occurrence of offence and the death took place at about 6-6.30PM on the same day. The Autopsy of the deceased was also conducted. Notices dated 26.04.1999 and 16.04.2000 were sent to the OPs, which were responded by OP 2. The complainants have claimed compensation in the sum of Rs.35.00 Lakhs, with interest @ 18% p.a. from the date of death till the day of realisation of the compensation amount.

(3.) OP 1 contested the present complaint. It was denied that the above said operation was conducted by OP 1. It was admitted that OP 1 treated the deceased for piles by Kshar Shutra Padhdhati, i.e. according to 'Ayurvedic Padhdhati', the word 'operation' used by the complainants is in lose sense of the treatment. The word 'operation' in Allopathy, does not explain that on completion of Kshar Shutra Therapy treatment, the deceased was normal and his condition was also normal. It is explained that, as a matter of fact, on immediate calling, Dr.Naresh Bhai Gandhi was not available and hence Dr. Mukesh Bhai was called. He was also an Anaesthetist and he came to see the deceased but there was failure of cardio respiratory system due to pulmonary odema. Consequently, the deceased died, as is apparent from the Post Mortem Report. The OP 1 is certified to do the job of Kshar Shutra Re-orientation Certificate, i.e. K.R.C. from the Institute of Post Graduate Teaching & Research, Gujarat Ayurvedic University, Jamnagar. OP 1 is legally performing Kshar Shutra Therapy as per Kshar Shutra Standard technique with full care and caution. The negligence on the part of the Doctor and the other allegations have been denied. It is also explained that as an additional safeguard, the services of the Anaesthetist were called for to avoid any pain to the patient. The process of Kshar Shutra treatment was undergoing, with the patient's and the guardian's consent. The replies to the Notices were sent to the OP 1. It is explained that after the death of the deceased, his relatives came, played mischief and damaged the hospital. Police complaint was also lodged. The Police arrested the OPs and ultimately they were released, on bail. The OPs received the 1st legal notice dated 26.11.1999 where a demand of Rs.20.00 lakhs as compensation was made. Thereafter, another legal notice dated 16.04.2000 wherein demand in the sum of Rs.35.00 Lakhs as compensation, along with interest @ 18% p.a. from the date of the death of the deceased, was received. Due to harassment of the heirs of the deceased, OP 1 left Godhra and has now shifted to Ahmedabad where he is practicing there.