RAJUBHAI NATWARLAL DATANI Vs. AMBUBHI CLINIC

JUDGEMENT

(1.) By way of this complaint, the complainants have prayed for compensation in the sum of Rs.9,26,050 with interest @ 18% p. a. on following brief allegation of facts. Complainant No.1's wife Madhuben (mother of complainant Nos.2 to 5) had an occasion to go to the opponent No.1 hospital/clinic on 21.8.1995 for consultation and curetting. Kamlaben, her neighbour accompanied her. They were knowing that Dr. Ambukumar Patel was alive and would give treatment to her. At that time, opponent No.2, who has been described as Dr. Smt. Nirmalaben A. Patel and opponent No.3, who has been described as compounder of opponent No.2 were present. Madhuben having already 4 children expressed her difficulty of not adding one more child to the family. It has been alleged that opponent No.2 advised her to go for curetting and she informed opponent No.3 to perform curetting on said Madhuben although he was not a qualified doctor. After the curetting was performed, when the patient went home she sustained unbearable pain. Hence, she once again went to opponent No.1 hospital and explained her problem to opponent No.2 who felt that the case became serious. She advised Madhuben to immediately go to V. S. Hospital but the doctors at V. S. Hospital could not save her life. It has, therefore, been alleged that on account of medical negligence on the part of opponent Nos.2 and 3, her life came to an end prematurely. The complainants have, therefore, prayed for expenses incurred by them to the tune of Rs.13,350 plus Rs.5,000 expenses for obsequies and compensation for loss of life of said Madhuben. Opponent No.2 has resisted the complaint inter alia saying that the complaint is not maintainable at law, that it is false, fabricated and manipulated and filed with ulterior motive against her, that it is false, frivolous and vexatious, that it is barred by limitation, that it is barred by the principle of misjoinder of parties and multifariousness, that opponent No.2 was never a doctor or gynaecologist, that opponent No.3 was, in the past an attendant of late Dr. Ambukumar Patel, husband of opponent No.2, that Dr. Ambukumar Patel died on 29.7.1995 and his clinic was totally closed for the purpose of any medical consultation or treatment or operation about a week prior to 29.7.2005 as the said deceased doctor was ailing and bed-ridden as also hospitalized, that information about his death was published in Gujarat Samachar newspaper and board was displayed on roadside front door stating that the clinic was closed since 29.7.1995 and that nobody was authorised to work or render service as doctor in that clinic. It has been asserted that the doctor was only personally rendering medical service in the clinic and it was never run by opponent No.2 who is merely a social worker and attached to voluntary organisation. She is M. A. with sociology and not having any degree or qualification or experience in medical science. She has denied all the allegations made in the the complaint and prayed for compensatory cost in the sum of Rs.1,00,000 while dismissing the complaint. Opponent No.3 has not appeared though duly served and has not filed any reply to the complaint. The complainant has filed affidavit in rejoinder at Exh.8.

(2.) Parties have placed on record xerox copies of the documents for stating the facts flowing therefrom. Complainant No.1 and his witness have been examined on oath. Opponent No.2 has also been cross-examined by the learned Advocate for the complainants. We have heard the learned Advocates for the parties. We have gone through the material placed on record. We have gone through the notes from the text books submitted on behalf of the parties.

(3.) In the first place we will be required to decide the liability of opponent No.2. It is interesting to note that complainants have come out with a specific case that opponent No.2 happened to be a doctor and gynaecologist, that she was present on the day when curetting was performed by opponent No.3 under her supervision or under her instructions and that she would be vicariously liable for act and/ or omission of opponent No.3 who was not qualified doctor to perform operation. We are required to test the truthfulness and correctness of these allegations and facts. It is interesting to note from the documents produced by the complainants themselves that on the very day when Madhuben was taken to the V. S. Hospital on 23.8.1995 the complainants came to know about the fact that Dr. Ambukumar Patel was no more and he died much before the day on which the curetting was performed. Xerox copy of the FIR and other papers would also indicate implication of opponent No.3 as the sole person who had the occasion to attend to Madhuben in absence of any body else. The same has been annexed with list Exh.4 at Item No.7. The FIR appears to have been given by complainant No.1 who has in terms stated that Dr. Ambukumar Patel died on 29.7.1995 and opponent No.3 who was working as peon in the clinic during the life-time of Dr. Ambukumar Patel performed curetting without having degree licensing him to perform such an operation or management. That precisely would go to indicate that complainant No.1 was in knowledge that Dr. Ambukumar Patel had died. He also knew the fact that it was only opponent No.3 who attended to Madhuben. There is not an iota of evidence to sustain the allegation that opponent No.2 was present at the time of performing curetting. FIR names only opponent No.3. This is one important circumstance to render a finding that opponent No.2 clearly appears to have been falsely joined in this complaint. That would take us to the case papers of V. S. Hospital which have been got produced by the complainants. The history which has been stated in the case papers would indicate that there was D/e (dilation and evacuation) done outside by some private doctor. H/o. same one month ago also present. The trouble which was expressed by and on behalf of the patient was with regard to inability to pass urine during past three days. It would, therefore, clearly appear from the history given to the V. S. Hospital that there is no indication of presence of opponent No.2 in any manner attributed by and on behalf of the complainants at the earliest point of time. Complainant No.1 has been cross-examined at Exh.19. He has admitted that he did not accompany his wife on the first day i. e. , on 21.8.1995 and Kamalaben, the neighbour accompanied her. In spite of what is stated above with regard to the FIR and the case papers of the hospital, he deposed that according to his say Dr. Ambukumar Patel was present when his wife was so taken to the clinic. He then testified that subsequently he came to know that Dr. Ambukumar had died and the person concerned was opponent No.3 Maganbhai Manjibhai who was the compounder. A sum of Rs.350 was paid but no receipt was passed and no prescription was given. In Para 4 of his cross-examination he has admitted that said Maganbhai had accompanied them when his wife was taken to the V. S. Hospital. This evidence clearly contradicts his whole story set out in the complaint insofar as opponent No.2 was sought to be connected with the incident in question. The matter does not end here. Kamalaben Datania who accompanied Madhuben on 21.8.1995 had deposed in her cross-examination that she came to know on the next day that the patient was taken to V. S. Hospital and that Dr. Ambukumar Patel had already died. It would, therefore, clearly appear that in spite of the fact that complainant No.1 had positive knowledge about the fact that opponent No.3 alone had the occasion to perform curetting, though not authorised, he had the courage to join opponent No.2 and to make false allegations of facts as noted herein above. This would assume importance particularly when it has been submitted that opponent No.3 continued in possession of the premises of the clinic even after the death of Dr. Patel. We will take ourselves to the legal position with regard to what would be the effect of death of Dr. Patel on the relationship of opponent No.3 and the deceased. However, in the presence of aforesaid factual scenario, the complainants clearly came before this Commission with allegations of facts which were false to the knowledge of the complainant, with a view to join opponent No.2 as party opponent.