HARIBHAI LAGHARBHAI SOLANKI vs SURESH PARIKH

THE complainants, brothers and parents of Ramesh have claimed the amount of Rs. 6 lakhs for the death of Ramesh alleged to have been caused by the negligent treatment of the opponent Dr. Suresh Parikh. According to the complainants as contended in the complaint Ramesh was studying in S.S.C. in Birla and Harjivandas High School and residing at Shree Sarvajanik Vidhyarthi Gruh, Dhandhuka. On 24.8.1990 Ramesh got fever and the Rector of the hostel Bhikhubhai Solanki and other students took him to the dispensary of Dr. Suresh Parikh. THE doctor advised the treatment of certain tablets and injection but Ramesh refused to be injected but the opponent Dr. Parikh injected the medicine without ascertaining as to whether reaction would be caused by the said injection. According to the complainants "BERALGAN" injection was injected and that caused reaction many a times. Ramesh complained of difficulty in vision but the opponent did not pay any attention to that and then instructed Bhikhubhai and other students to take away Ramesh. Ramesh was taken in a rikshaw to the Referral Hospital, Dhandhuka where he was treated by Dr. Kanaiyalal Hiraji Rathod. Dr. Rathod gave oxygen as emergency treatment but in the meanwhile Ramesh expired. Police complaint was filed and post mortem was also carried out. According to the complainants the reason of the death was the treatment and negligence by the opponent. Ramesh who was studying in S.S.C. would have bright future and, therefore, the complainants have claimed the amount of Rs. 6 lakhs.

THE opponent Dr. Suresh Parikh by written statement denied the allegation about the negligence and contended that this Commission has no jurisdiction to try the complaint as services of doctor do not fall within the purview of Consumer Protection Act. It is also contended that Ramesh had not only fever but also complained of diarrhoea and vomitting. He was not brought by Bhikhubhai Solanki but accompanied by three other students. Tablet paracitamol, D.H.Q. (Diiodo-Hydroxy Qunoliline), Furozolidone and Loperamide and injection of BARALGAN 2 c.c. intra-muscular was given by the opponent. According to the opponent no reaction was caused of injection or treatment and Ramesh had not complained about any difficulty in vision. Ramesh was taken after one hour and the opponent advised to take him to the Government hospital. THE opponent emphatically denied that the reaction was because of the treatment or injection. Ramesh was then taken to Referal Hospital, Dhandhuka. THE opponent did not know as to what reason was given by the doctor. Other allegations about negligence etc. and the fact that Ramesh would have earned more in future are denied and the liability for Rs. 6 lakhs is also denied. The evidence of complainants Haribhai Lagharbhai Solanki and Mukeshbhai Haribhai Solanki, Bhikhubhai Haribhai Solanki and Dr. K.H. Rathod has been recorded. We have perused the evidence of the witnesses. So far the evidence of Haribhai Solanki, father of Ramesh is concerned, he had no personal knowledge about the incident. Bhikhubhai Solanki is alleged to be present when Ramesh was taken to the opponent Dr. Parikh which fact is challenged by the otherside. Even if it is accepted for the sake of argument that Bhikhubhai was present that fact will not make any material difference because he is a layman so far the treatment is concerned. The witness Mukeshbhai Haribhai Solanki had accompanied Ramesh to the opponent. He has stated that he had taken Ramesh to Dr. Parikh. He is also a layman and he cannot express any opinion about the effect of the treatment or negligence of Dr. Parikh. The material evidence on the record is that of Dr. K.H. Rathod who was at the relevant time Medical Officer in Dhandhuka Sarvajanik Arogya Kendra. According to him Ramesh was taken to him at 7.10 p.m. on 24.8.90 and he examined him. Bhikhubhai who had taken Ramesh to him in the history of patient stated that Ramesh was ill for 2/3 days and was taken to Dr. Parikh for treatment and doctor had injected Baralgan injection and had given other tablets for the treatment. From the dispensary of Dr. Parikh Ramesh was taken to the bus stand. There he became unconscious and again they gone to Dr. Parikh at his dispensary but he advised to take him to Arogya Kendra and, therefore, they have taken Ramesh to Dr. Rathod. When Ramesh was taken to him he was unconscious and his condition was serious. On examination it was found that the respiratory system was slow and pulse was also slow and the pupils were dilated. Bhikhubhai had shown one piece of paper in which name of injection "BARALGAN" was written and told me that said injection was injected to Ramesh by Dr. Parikh. Dr. Rathod was put the question by learned Advocate for the complainant as to what he found after examining the patient and what could have been the reason for such condition of patient to which he replied that he could not judge at that time and he could not ascertain the reasons also at that particular time of examining the patient. Ramesh was put on oxygen and injection Hydorcotrezon, Adrinal and Coramin were injected. Coramin was injected in the chest as Dr. Rathod felt that the respiratory system and heart were failing. Ramesh expired within 10 minutes after he was taken to Dr. Rathod. As complaint was filed, the police requested Dr. Rathod to carry out the post mortem and, therefore, he carried out the autopsy but at that time also Dr. Rathod could not ascertain the reason of death and, therefore, mentioned in the post mortem report that the cause of death was kept open till the chemical analysis report was available. Subsequently after receiving the report Dr. Rathod stated in the column of cause of death as "due to cardio vascular failure" and according to Dr. Rathod, no definite opinion could be given and circumstantial evidence should be considered.

The complainants have not been able to establish from the evidence of Dr. Rathod that the death was due to injection or any other treatment given by the opponent Dr. Parikh. The complainants have not led any other evidence to establish that the death was the result of negligence or negligent treatment by the opponent. It is quite natural that the failure of heart and respiratory system may be due to ailment from which Ramesh was suffering for 2/3 days. It is quite possible that it may be natural death and not unnatural death due to treatment or reaction by medicine. To establish the negligence of the opponent the complainant should have led definite evidence connecting the effect of the medicine administered by the opponent with the cardio vascular failure or the death of Ramesh which they have utterly failed. In such circumstances we are definitely of the opinion that the death was not the result of treatment or any negligence by the opponent.

IN view of our above findings that the opponent is not negligent, the question of awarding compensation from opponent does not arise. However, during the course of the proceedings it transpired that the opponent Doctor was covered by insurance policy and, therefore, this Commission suggested to Shri R.H. Mehta, the learned Advocate for the opponent who is also Standing Counsel for the INsurance Company to persuade the INsurance Company to pay reasonable amount to the complainants on compassionate basis though the INsurance Company is not joined as a party. Shri R.H. Mehta was quite co-operative to the complainant during the proceedings and, therefore, he persuaded the INsurance Company to compensate the complainants who are members of scheduled caste and not financially sound. Ultimately the INsurance Company has agreed to pay the insurance amount of Rs. 75,000/- for which Dr. Parikh was covered by the*INsurance Policy. Shri Mehta showed us the letter dated May 24, 1993 by Deputy Manager, New INdia Assurance Company Limited addressed to him and made a statement before us that the INsurance Company accepts the suggestion by this Commission to pay the compensation to the extent of the insurance amount i.e. Rs. 75,000/- for the death of Ramesh and will deposit that amount before this Commission within four weeks. The INsurance Company should therefore deposit the amount of Rs. 75,000 /- before this Commission within 4 weeks. We record our appreciation for the sympathetic approach by the INsurance Company and the cooperation of Shri R:H. Mehta, the learned Counsel for the opponent. In view of the above developments and the complainants realising that the complaint was likely to be dismissed on merits, the complainant Haribhai Lagharbhai Solanki and his brother Vijaybhai who is pursuing the litigation stated in the evidence before this Commission that considering the evidence on record and specifically the evidence of Dr. K.H. Rathod they are prepared to accept the amount which may be paid by the Insurance Company as the full and final satisfaction of the claim and they will withdraw the suit filed in the Civil Court and will not make any grievance against the opponent Dr. Parikh or against anybody and whatever grievance they have made against Dr. Parikh before higher authorities stands satisfied. In view of the statements of the complainant and his brother it should be observed that the complainants have now no grievance against the opponent Dr. Parikh. The complainant has agreed before us that out of the amount of Rs. 75,000/- which will be deposited by the Insurance Company before this Commission the amount of Rs. 15,000/- for each of the minors should be deposited in the State Bank of Saurashtra, Dhandhuka in the fixed deposit and minors through their guardians will be allowed to withdraw the interest. In view of above, we pass the following order: ORDER The New India Assurance Company Limited is directed to deposit Rs. 75,000/- within 4 weeks before this Commission. The complaint against the opponent Dr. Parikh stands dismissed. On depositing the amount of Rs. 75,000/- the amount of Rs. 15,000/- each should be paid to the complainant Haribhai Lagharbhai Solanki and Rs. 15,000/- to Mrs. Rajuben Haribhai Solanki and the amount of Rs. 15,000/- each should be deposited in the name of three minors Mukeshbhai Haribhai Solanki, Gulabbhai Haribhai Solanki and Motibhai Haribhai Solanki in fixed deposits with State Bank of Saurashtra, Dhandhuka branch till the minors attain the age of 21 years. The minors through their guardians should be allowed to withdraw the interest at the interval of six months. On attaining the age of 21 years the minors will be entitled to withdraw the amount deposited in respective accounts. If under any circumstance the amount deposited in their names is required to be with drawn before attaining the age of 21 years, that should be only by the orders of this Commission. During the period the minors attain the age of 21 years the Bank should not advance any loan against the said deposits. In the circumstances there will be no order as to costs. Complaint dismissed. ________________