BALASAHEB GANGA RAM GOWADE Vs. RAVINDRA KULKARNI

JUDGEMENT

(1.) Petitioner was the complainant before the District Forum, where he had filed a complaint alleging medical negligence on the part of the respondent.

(2.) The brief facts of the case are that the wife of the complainant, upon getting pregnant, approached the respondent where she delivered a girl child on 28.12.1992, after which she was brought back to semi-private ward where she complained of pain but no doctor was available as they had gone home for lunch break/attending to other patients. When on the repeated requests of the relations of the deceased, the doctor finally came at 6 p.m. along with a specialist, it was found to be too late and the deceased died on the same evening on account of cardiac arrest. The matter was reported to the police. The post-mortem was carried out, but the report came almost after one year of the post-mortem. Alleging case of medical negligence a complaint was filed before the District Forum who after hearing the parties allowed the complaint and directed the respondent to pay Rs. 2,50,000/- as compensation along with interest. On an appeal filed by the respondent before the State Commission, it was allowed and the order of the District forum was set aside, hence this revision petition.

(3.) We heard the learned Counsel for both the parties at length and perused the extensive material, including literature, expert evidence and other material on record. After perusal of material on record as also the two orders passed by the two lower Forums, two important witnesses, according to us, could be Dr. Khade and Dr. L.R. Badhe. According to post-mortem report of Dr. Badhe, which is written after one year of the post-mortem, the cause of death 'post-partum Haemorrhage with Shock'. In this context the report of the independent witness and a medical specialist Dr. A.R. Khade, assumes great importance. Dr. A.R. Khade is M.D. (Medicine) and is a physician. He had seen the patient on 25.2.1992 in the hospital record of the deceased, he had written "case of delivery and P.P.H. and Shock" while in the affidavit filed by the same Doctor before the District Forum, the reason for death is given out as 'Pulmonary Embolization'. There is no word of PPH in the affidavit. In our view, one would have a clear picture, had deponents been allowed to be cross-examined. In case the deponents had been subjected to cross-examination, it would have helped in arriving at a correct and just conclusion. None of the two lower Forums have really gone into this point. Our attention was also drawn to an application made by the complainant dated 17.11.1995 to the District Forum not to allow the cross-examination of one of the deponents, namely, Aruna Deshmukh who purported to be a qualified nurse, but at the same time a request was also made in the application to obtain opinion of expert doctor to ascertain the cause of death. We see nothing on record showing any action taken on the second part of the request. It appears that by inference the first prayer in this letter only was allowed. In the absence of such controversy not being resolved and contradictions not being put to the deponents and witness not being cross-examined, we are in no position to arrive at the correct conclusions. In our view, both the lower Forums should have considered examination of witnesses before taking a view in one way or the other instead of basing judgments on assumptions and to some extent personal knowledge. It is settled law that we have to go by the material on record. We are fully conscious of the fact that this is an old case, but in the interest of justice and to find out the truth it is essential that the witnesses are subject to cross-examination and orders passed after giving this opportunity to both the parties to do the same. In view of above, the case is remanded back to the District Forum, who shall allow opportunity to cross-examine the witnesses after issuing notices to the parties and pass order within three months as the case is quite old. Ordered accordingly. No order as to costs. R.P. allowed.