SHARAD HOSPITAL Vs. SHANKAR LAL GUPTA

JUDGEMENT

(1.) The above two appeals filed by the appellants under Sec.15 of the (hereinafter referred to as "the Act of 1986") are being decided by this common judgment as in both of them common questions of law and facts are involved and they have been preferred against the order dated 3.12.2003 passed by the learned District Forum, Camp Jaipur in Case No.258/2003 by which the complaint filed by the Complainants under Sec.12 of the Act of 1986 was allowed in the manner that the appellant No.1 Sharad Hospital in Appeal No.161/2004 (opposite party No.1 in the original complaint) was directed to pay to the Complainants a sum of Rs.50,000 as compensation and the appellant-Dr. Rajendra Dhar in Appeal No.419/2004 (opposite party No.4 in the original complaint) was also directed to pay to the Complainants a sum of Rs.50,000 as compensation along with interest @ 9% p. a. with effect from 28.1.1997 till payment was made.

(2.) The necessary facts giving rise to the above appeals are as follows : on 28.1.1997, the Complainants had filed a complaint under Sec.12 of the Act of 1986 before the District Forum, Jaipur stating inter alia that their daughter Umang aged 9 years (hereinafter referred to as "the deceased") was admitted in the Sharad Hospital-appellant No.1 in Appeal No.161/2004 and that Hospital was being run by Dr. (Smt.) Santusht Mathur, appellant No.2 in Appeal No.161/04 (opposite party No.2 in original complaint) and she was Director of that hospital. It was further stated in the complaint that on 23.9.1995, deceased was suffering from high fever and, therefore, she was brought to the Sharad Hospital at about 11.30 a. m. and at that time, in that hospital, Dr. Rajendra Dhar (appellant in Appeal No.419/2004 and opposite party No.4 in original complaint) was on duty and after deceased was being examined by Dr. Rajendra Dhar, she was got admitted in that Hospital. It was further stated in the complaint that after having been admitted in the Sharad Hospital, her examination in respect of blood, urine etc. was got done by the staff of the Hospital and when the Complainants intended to contact with the appellant No.2 Dr. Santusht Mathur in Appeal No.161/2004, Director of that Hospital, it was stated that there was no necessity to contact her. It was further stated in the complaint that after having been admitted in that hospital, no body took care of the deceased and in the night at about 10.00 p. m. on 23.9.1995, the condition of the deceased became deteriorated, but despite that no body in the Hospital took care to look after her and in the morning of 24.9.1995, the deceased had died and according to the Complainants, death of the deceased had taken place because of negligence of the doctors and staff of Sharad Hospital, especially Dr. Rajendra Dhar (appellant in Appeal No.419/2004 ). Thereafter, the present complaint was filed by the Complainants claiming Rs.4,91,465 as compensation. A reply was filed by the appellants Sharad Hospital and its Director Dr. Santusht Mathur of Appeal No.161/2004 on 21.11.1997 stating inter alia that Dr. Santusht Mathur was a Specialist in Gyne and Obstetrics and for other treatment, Sharad Hospital had employed Dr. Rajendra Dhar (appellant in Appeal No.419/2004 ). It was further stated in the reply that whenever Dr. Santusht Mathur, Director of Sharad Hospital, had to go outside, in her absence, no patient was being admitted and if in her absence, any patient was being admitted, it was not the responsibility of the Hospital and since deceased was being admitted by Dr. Rajendra Dhar (appellant in Appeal No.419/2004) in absence of Dr. Santusht Mathur, Director of Hospital, therefore, if any treatment was given by Dr. Dhar, for that Hospital Administration was not responsible. It was further stated in the reply that from the record of the Hospital, deceased was suffering from cough, fever and vomiting and there was no dispute on the point that drip was given to the deceased. It was further stated in the reply that when deceased was admitted in the hospital by Dr. Rajendra Dhar, appellant in Appeal No.419/2004, Director of Hospital, namely, Dr. Santusht Mathur was outside Jaipur and she had no knowledge that deceased was admitted in her hospital and in the morning of 24.9.1995 when she had gone for morning walk, she came to know that death had taken place in her hospital and then only she came to know that deceased was being admitted in her hospital. Hence, there was no responsibility of Sharad Hospital and its Director Dr. Santusht Mathur and complaint against them deserves to be dismissed. A reply was also filed by Dr. Rajendra Dhar (appellant in Appeal No.419/2004) through letter dated 22.10.2003 stating therein that he was duty Doctor in Sharad Hospital (appellant No.1 in Appeal No.161/2004) on salary basis and he had to discharge duty from 10.00 a. m. to 1.00 p. m. daily and on 23.9.1995, deceased was brought to that Hospital with history of high grade fever and, therefore, she was admitted in that hospital for evaluation and he left he hospital at around 1.30 p. m. and before that, deceased was admitted in the hospital. It was further replied that after 1.00 p. m. he had no information that the condition of deceased had deteriorated in the hospital and he came to know about the death of the deceased only on next day i. e. , on 24.9.1995 and, therefore, he was not responsible for any negligence, if done in the treatment of deceased and thus, it was prayed that complaint be dismissed against him. After hearing the parties, the learned District Forum, Camp Jaipur through impugned order dated 3.12.2003 allowed the complaint of the Complainants in the manner as indicated above holding inter alia: (i) That there was no dispute on the point that deceased was admitted in the Sharad Hospital after making necessary payments and thus, complainants being father and mother of deceased, are consumers. (ii) That payment was received not by Dr. Rajendra Dhar (appellant in Appeal No.419/2004), but in the name of Sharad Hospital (appellant in Appeal No.161/2004) and from the reply of Dr. Rajendra Dhar, it is also clear that he was employed in that Hospital. (iii) That treating Dr. Rajendra Dhar had left the Hospital at 1.00 p. m. and despite the fact that deceased was suffering from high grade fever and her condition was serious one, he had not taken any care to look after her and see her after 1.00 p. m. of 23.9.1995 till she had died in the morning of 24.9.1995 and the conduct and act of Dr. Rajendra Dhar clearly reveals that there was negligence on his part in giving treatment to deceased and he was guilty of committing medical negligence. (iv) That since Dr. Rajendra Dhar was an employee of the Sharad Hospital and deceased was admitted in that hospital and payment was made to that hospital, therefore, the hospital could not escape from its liability and it is also vicariously liable for the act done by its employee Dr. Rajendra Dhar. Aggrieved from the said order dated 3.12.2003 passed by the learned District Forum, Camp Jaipur, the aforesaid two appeals have been filed by the appellants one by Sharad Hospital and its Director and another by its employee Dr. Rajendra Dhar.

(3.) In these appeals, the main contentions of the learned Counsel for the appellants are as follows : appeal No.161/2004 filed by Sharad Hospital and its Director Dr. Santusht Mathur (i) That since at the time when the deceased was admitted in the Sharad Hospital, its Director, namely, Dr. Santusht Mathur was not present and she was out of station, therefore, whatever would be the responsbility, that would be of Dr. Rajendra Dhar, who had admitted the deceased and given treatment to her. Therefore, the impugned order of the District Forum holding the Sharad Hospital liable to pay compensation to the Complainants for the act done by Dr. Rajendra Dhar was wholly illegal and erroneous one and thus, the same cannot be sustained and liable to be quashed and set aside. Appeal No.419/2004 filed by Dr. Rajendra Dhar (ii) That since Dr. Rajendra Dhar had left the hospital at 1.00 p. m. on 23.9.1995, and thereafter, no negligence on his part could be attributed if something had happened later on and in giving treatment to deceased upto the period when he was in the hospital, there was no negligence on his part. (iii) The impugned order of the District Forum holding Dr. Rajendra Dhar liable to pay compensation to the Complainants suffers from basic infirmity, illegality and perversity and according to appellant-Dr. Dhar, whole amount should have been paid by the authorities of Sharad Hospital, where he was employed, as deceased was admitted there and payment was made to that Hospital.