ABDUL RAHIM Vs. KANNAKI THIRUVALLUVAN

JUDGEMENT

(1.) the Complainant, the husband of the deceased Nilavarnisha filed the complaint for directing the opposite parties to pay Rs.5,000 the amount spent for the medical treatment and compensation of Rs.15,00,000.

(2.) The case of the complainant is as follows: the wife of the complainant, who was aged 44 years was employed at Abudabi as a helper on a monthly salary of Rs.30,000. When she came to India on 22.6.1998, she got pain in her stomach. Therefore, she approached St. Rock's Dispensary, Karaikal in the month of August, 1998 for treatment i. e.5th opposite party's dispensary. Opposite party Nos.1 and 2 checked the complainant's wife and advised her to do an operation. The complainant's wife agreed to do the operation and paid all the amount for the expenses and admitted in the said dispensary on 4.8.1998. On 5.8.1998 the operation was done by the first four of the opposite parties without having sufficient equipments, in a careless and negligent manner. Thereafter, the 1st opposite party referred the complainant's wife to Government Hospital, Karaikal for further treatment. But the Government Hospital authorities directed the 5th opposite party to take the patient to Pu-ducherry immediately. They arranged a van without sufficient oxygen for breathing of the patient. But, due to the insufficiency of oxygen, they returned to Karaikal and the complainant's wife died on 7.8.1998. The wife of the complainant was hale and healthy woman. She died due to the negligent operation done by the 5th opposite party with insufficient equipments. Therefore, they are responsible for the death of the complainant's wife. Due to the death of his wife, the complainant suffered a lot of mental agony and torture. The complainant issued notice to the opposite parties on 3.7.1999 directing them to pay a sum of Rs.50,00,000 as compensation. The opposite parties received the notice. But they have not given any reply. Hence, the complaint.

(3.) The case of the 2nd opposite party is as follows: the complaint does not disclose any material facts. The death of the complainant's wife does not have any proximity or nexus with the alleged act of the opposite parties. After the surgery there was intervention of another act coupled with contributory negligence on the part of the complainant. To bring the liability under the Consumer Protection Act, it is necessary that the act alleged to have been committed by the opposite parties was the cause of the death. Hence, the complaint is not maintainable. There is no averments in the complaint which alleges any act of deficiency in service on the part of the opposite parties. If the negligence and carelessness are to be the ingredients of the complaint, then that would exclude the applicability of Consumer Protection Act. It is not specified whether the St. Rock's Dispensary is run by a society or firm. Nothing is said about it, nor the very nursing home is a party duly represented by the concern. There is no indication whether the cause of action is against the nursing home or against the individual. For the complainant's notice dated 3.7.1999, a reply was given on 13.7.99. The 3rd opposite party, Dr. Rajaraman is not connected with any of the averments and has nothing to do either theory projected in the notice or dispensary. The 5th opposite party is only a sister and not a doctor. The complainant also is unable to state to whom any charge was paid for the alleged services rendered. The medical treatment is not to be termed as commercial product nor a commercial activity. The 1st opposite party is a gynaecologist and her husband, the 2nd opposite party is a surgeon. In the course of her private practice, the complainant's wife approached the 1st opposite party with a medical report made by another doctor, earlier. On examination, she was found to be a person, who had bleedings from vagina accompanied by abdominal pain. It was found that she had fibroid uterus and, therefore, operation hysterectomy for her was necessary. She was referred to go for blood, urine and ECG test and her physical condition was found normal. All precautions medically necessary before resorting to surgery were taken and thereafter, surgery was done on 5.8.98 between 5.00 and 6.00 a. m. at St. Rock Dispensary by the 1st opposite party. The 4th opposite party is a qualified Anaesthetist. The said surgery was successfully performed and the patient was completely normal. Some hours later, she complained of some difficulties in breathing and when oxygen was applied, she had great relief. The opposite party Nos.1, 2 and 4 advised the patient to have supply of oxygen with a ventilator by getting admitted in G. H. Karaikal in the evening on 5.8.1998 and the complainant informed later that she was much improving and comfortable. They came to know later that the patient wanted to be discharged on 7.8.1998 and she was advised against it. But on the insistence of the patient and her husband, she was discharged against the medical advice and later she returned to the hospital within a few hours and was readmitted to the hospital and thereafter she passed away. After the said patient was discharged from the St. Rock's Dispensary, they have no control of the said patient. They came to know that the patient got a discharge against the medical advice in the morning on 7.8.1998 and was taken to Pondicherry. A qualified doctor of G. H. Karaikal, who was to attend a conference at Puducherry utilised the use of the vehicle going to Puducherry. But the patient could not withstand the strain of journey by road and, therefore, she was brought back to G. H. Karaikal and was readmitted there in the hospital, where she died. There was no post-mortem of the body done. But the hospital authorities admitted to have specified that pulmonary embolism could be the cause of the passing away of the patient. The discharge of the patient was much against the medical advice, which alone might have been the cause for the death. The allegations that there was not sufficient equipments in the St. Rock's Dispensary and that the operation was done carelessly are not true. All the equipments that are necessary were all available in the St. Rock's Dispensary. There was no complication whatsoever in regard to the surgery performed. But for the discharge got by the complainant and the patient on insistence against medical advice from the hospital, on account of which she had to be put by the strain on travel, there should have been no problem at all. After discharge from the clinic, the patient was not treated thereafter by any of the opposite party Nos. l, 2 and 4. The claim of the complainant for compensation is liable to be rejected. The allegations that the complainant suffered mental agony and torture are not correct. The counter is adopted by the opposite party Nos. l, 3 , 4 and 5.