HARDWARI LAL Vs. DR. A.K. AGGARWAL

JUDGEMENT

(1.) These two cross First Appeals, under Sec. 19 of the Consumer Protection Act, 1986 (for short "the Act"), arise out of the order dated 22.11.2007, passed by the State Consumer Disputes Redressal Commission, Delhi at New Delhi (for short "the State Commission") in Complaint Case No. C-271 of 1998. By the impugned order, while holding that there was limited deficiency on the part of the sole Opposite Party in the Complaint, hereinafter referred to as the Treating Doctor, in not ensuring the quality of the injection equipment, including the syringe being duly sterilized, which resulted in growth of Gas Gangrene; amputation of the left arm and ultimate death of the wife of the Complainant, the State Commission has awarded a lump-sum compensation of Rs. 50,000.00, including the cost of litigation, in favour of the Complainant.

(2.) While First Appeal No. 68 of 2008 has been filed by the Complainant for enhancement of compensation from Rs. 50,000.00 to Rs. 10,00,000.00 by holding the Treating Doctor fully liable for his negligence, First Appeal No. 208 of 2009 has been filed by the Treating Doctor for setting aside of the impugned order itself. Since both the cross Appeals emanate from the same order, between the same parties, these are being disposed of by this common order. However, for the sake of convenience, First Appeal No. 68 of 2008 is treated as the lead case.

(3.) Upon notice, the Treating Doctor contested the Complaint. Refuting the allegations levelled in the Complaint, in his Written Version, the Treating Doctor pleaded that the Complainant had already filed a criminal case against him and pending consideration thereof, the Complaint may be adjourned sine die .On merits, it was stated that the services rendered by the Treating Doctor were of a highly skilled and specialized nature but unlike the machines created by men, where all the parts thereof are same and respond in similar manner under similar set of stimuli/instructions, the human body responds in a variety of ways, sometimes unexpected, under same set of circumstances and treatment; since the Patient had simultaneously been treated by some other Doctors/Nursing Home and Ram Manohar Lohia Hospital, the Complaint was bad for misjoinder of parties; the Complainant had informed him that the Patient was having history of diabetes and was taking treatment therefor; the Patient was administered injection after properly cleaning the site where the same was to be given with a cotton swab soaked in antiseptic solution and using disposable syringe and needle; the Patient was advised medicines for 1 day only and not for 3-4 days, as alleged by the Complainant; when the Patient was brought to his clinic on 14.09.1996 with the complaint of persisting fever, the Complainant and the Patient were apprised of the fact that the prescribed medicines would take some time to respond; however, the Complainant insisted that some more effective medicines be administered to the Patient so that she could get instant relief; and therefore he decided to administer two more injections to the Patient but, on the rigid insistence of the Complainant, one injection was deleted from the prescription slip and only one injection was administered to the Patient, using disposable syringe and needle. It was stated that, in all, only two injections were administered to the Patient on 14.09.1996; one in the morning and one in the evening at the hip and not on her upper shoulder, as alleged. It was asserted that the Patient was not brought to his clinic on 19.09.1996 and after taking treatment on 14.09.1996, the Patient was brought to his clinic only on 21.09.1996, and never in between the intervening period of 7/8 days, as alleged; on 21.09.1996 the Patient had swelling on her hand, which was abnormal in the circumstances of the case, whereupon the Complainant had informed him that since he was not satisfied with the treatment, he had taken his wife to two other medical practitioners, who administered injections to the Patient and had also applied/prescribed some local medication; and it was only when the condition of the Patient had deteriorated, the Complainant brought her to his clinic but since by that time, the condition of the Patient had deteriorated beyond care, he referred her to a bigger hospital. As regards the prescription of the medicines, on 14.09.1996, it was stated that since the Patient had one day's fever, it was not mentioned on the prescription slip and that she was suspected to be having Dengue fever; when the Patient was brought to his clinic on 21.09.1996, it was found that she had rashes on her body and other indications to suspect Dengue fever, which was prevalent during that period, and, therefore, the same was mentioned by him. It was pleaded that he had not suppressed any fact as regards acute infection to the Patient nor had he committed any negligence while treating her; since the Patient had died after 4-5 days of her hospitalization, he could not be blamed for the same; the post mortem report did not record any definite opinion as to the cause of death of the Patient; the whole story was cooked up by the Complainant with a view to frame him. As regards the legal notice, it was stated that an unsigned letter dated 27.07.1998, purportedly issued on behalf of the Complainant, was received by him but since the same was baseless and without any merit, it was not responded to.