A.S. KARTHIKEYAN vs T.MARIYAM

THESE appeals are directed against the order passed by the District Forum/ Malappuram in OP No. 1007/93. The first opposite party is the appellant in Appeal No. 227/1996 and the second opposite party is the appellant in Appeal No. 226/96.

SHORTLY stated, the allegations in the complaint are as follows : The complainant''s daughter aged 4 years was admitted to the Perinthalmanna Nursing Home of the first opposite party on 20.6.1993 with complaints of fever and pain on the right knee. The admission was at the instance of the 2nd opposite party. Due to incorrect and improper diagnosis and unnecessary operation/ the child died on 24.6.1993. In spite of several requests to the first opposite party to issue a certificate showing details regarding the treatment given to the child, the first opposite party refused to issue the certificate. It is in those circumstances the complaint was filed. The opposite party in their version con tended that the complainant was not admitted to the hospital of the first opposite party and no diagnosis nor treatment was given to the complainant''s child. The complainant was an inpatient in the nursing home after undergoing a caesarian operation. The child Afsala came to the hospital as the complainant wanted to see the child on 24.6.1993 in the evening. The first opposite party was called to the OP room where he found that the baby was gasping and within seconds the baby died. The opposite party is not, therefore, responsible for the complainant''s claim.

The second opposite party filed a version stating that the child was brought to his residence and he diagnosed the disease of the child as cellulites on anterio medial of thigh and advised 8 hours interval injections and antibiotics. He further stated that he also advised to bring the child after two days to the Government hospital, Mankada where he works. But instead of coming to the hospital the child was brought to the second opposite party. The child was having inflammations and second opposite party advised incision and drainage as he was told that the child was not given injection at intervals of 8 hours and the child refused to take oral ampicillin. It was essential to conduct incision and drainage and the 2nd opposite party conducted incision and drainage with care and caution, and the child went away after getting the wound dressed. Thereafter he had no intimation.

THE District Forum on the basis of Exbts. A 1 to A 7 and B 1 and the oral evidence of PWs 1 and 2 and OPWs 1 and 2 came to the conclusion that the child was admitted. Exbt. A7 is the certificate of death in respect of the child issued by Perintalmanna Municipality on 2.7.1993. THE date of death is shown as 24.6.1993 and the place of death is shown as Perintalmanna Nursing Home. THE District Forum also relied on certain prescriptions issued by the second opposite party and also medical bills purchased from the pharmacy and Medical shop attached to the hospital. In the view an order passed holding that the complainant was entitled to the details with regard to admission and treatment of the child and passed an order directing the opposite parties 1 and 2 to pay Rs. 7,500/- as compensation. Both the parties were also directed to pay Rs. 1000/- as costs.

FEELING aggrieved by the said order this appeal has been filed. We find that no evidence has been adduced to show the complainant hired the service of the first opposite party hospital in regard to the treatment of Afsala. It is the definite case of the first opposite party that the mother of the child was admitted to the hospital and she underwent a caesarian operation and during that time the child came there and they found the child in a serious condition and within seconds the child would died. In the absence of hiring of service for consideration it would be difficult to say that there is any deficiency on the part of the first opposite party. Mere circumstance that some medicines were purchased from the pharmacy attached to the first opposite party hospital at the prescription of the second opposite party who is a doctor employed in a Government hospital is not sufficient to find that the service of first opposite party was hired for consideration. We are, therefore, unable to sustain the order passed by the District Forum. There is no averment in the complaint that any consideration was passed to the opposite parties for hiring of service in regard to the treatment of child. It is admitted in the complaint no registration card was issued at the time of admission of the child in the hospital. Though we feel that it is probable that some prescription was given from the hospital there is no material to show consideration was passed for that. In the circumstances it would be difficult for us to hold that there is hiring of service for consideration. There is also no evidence to show that the child died for want of proper care and attention be opposite parties. No evidence has been adduced on this aspect also. In the circumstances we allow the appeals, set aside the order of the District Forum and dismiss the complaints. Appeals allowed.