Jitendra Nath vs MANJU GEETA MISHRA

-THIS Case (64 of 91) and Case No. 65 of 91 arise out of the same cause and therefore they have been heard together on the point of their maintainability under the Consumer Protection Act (hereinafter called the Act) and they are being disposed of by this common order. The complainant in both cases is the same.

THE case of the complainant may be briefly stated. THE in the Case No. 64 of 91-Dr. (Mrs.) Manju Geeta Mishra (hereinafter being referred to as Dr. (Mrs. Mishra) maintains a Nursing Home known named M.G.M. Nursing Home. ''s wife Mrs. Bibha Nath was in the family way and she felt some labour pain on 13th August, 1991 and therefore the complainant took her to the Nursing Home of Dr. (Mrs.) Mishra at 3.00 p.m. on 13th August, 1991. On the advise of Dr. (Mrs.) Mishras the complainant''s wife was kept in the labour room of that nursing home. At 4.59 p.m. on the same day i.e., on 13th August, 1991, the complainant''s wife gave birth to a child (son) but that delivery was not normal and the delivery could be affected by operation by Dr. (Mrs.) Mishra for which fee of Rs. 1200/out of Rs. 1280/as demanded by Dr. (Mrs.) Mishra as her operation charge was paid to her and consent of the complainant for the operation was taken in writing. Immediately after the operation and the delivery of the child the complainant''s wife was removed to Room No. 52 of the Nursing Home. In the operation room there were three bed rooms and all the three bed rooms were occupied by the three expectant mothers including the complainant''s wife. Dr. (Mrs.) Mishra had not called any child specialist which the was duty bound to do to meet any emergency. THE had herself opined after examining complainant''s wife on 1.8.91 that the delivery could be expected on or about 11th September, 1991. Hence Dr.(Mrs.) Mishra knew it well that the delivery of the child was pre-mature by about three weeks. THE child was underweight weighing 2 kgs. and 300 grms. only. But Dr. (Mrs.) Mishra instead of taking care to examine the condition of the health of the newly born child and taking adequate step for the welfare of the child immediately took up another operation. Dr. (Mrs.) Mishra was so careless that she did not keep any sterlised towel to wrap the child and as such it was wrapped by an unsterlised towel provided by the complainant on demand by the . Dr. (Mrs.) Mishra "failed to clean the tongue and the throat of the child and also failed to make the child cry which she should have done due to which the child had respiratory trouble and deficiency of Oxygen resulting in Asphyxia. " Dr. (Mrs.) Mishra advised the complainant to take the child to a child specialist and referred the name of Dr. Sharawan Kumar-(being referred to hereinafter as Dr. Kuma''r)-the Opposite Pary in Complaint Case No. 65 of 91, who also maintains a Nursing Home at Patna. The complainant as advised by Dr. (Mrs.) Mishra took his child in his arms at 2.00a.m. on the night between 14th and 15th August, 1991 accompanied by a male compounder to the Nursing Home of Dr. Kumar where the child was admitted and kept In an Incubator on the payment of Rs. 500/as advance. The child was kept there on 14th and 15th August, 1991 also under the care of Dr. Kumar and on 15th August, 91 the complainant had to pay a further sum of Rs. 350.00 as demanded by Dr. Kumar. On the night between 15th & 16th of August, 1991 the complainant''s child expired in that Incubator, the information regarding which was given to the complainant on telephone at about 7.00 a.m. on 16th August, 1991 through a female staff of the Nursing Home of Dr. (Mrs.) Mishra when the complainant was in Room No. 52 of that Nursing Home where his wife was staying after delivery. The complainant immediately rushed to the Nursing Home of Dr. Kumar. The complainant had asked Dr. Kumar to call immediately some senior doctors like Dr. Lala Suryanandan and Dr. Utpal Kant without any hesitation if the condition of the child did not improve and he (the complainant) had undertaken to pay their fees. But Dr. Kumar did not do so and left the child uncared for nor he informed the complainant regarding the deteriorating condition of his child though the complainant was always present in Room No. 52 of the Nursing Home of Dr. (Mrs.) Mishra. The complainant asked Dr. Sharawan Kumar as to why he had behaved in such a careless manner and he (the doctor) replied loudly that he is a doctor not God and he also used insulting words saying that complainant had spoiled his mood early in the morning.

The complainant filed Complaint Case No. 532/91 against Dr. (Mrs.) Mishra and Complaint Case No. 479/91 against Dr. Kumar stating the above facts before the Chief Judicial Magistrate, Patna and after cognizance being taken by the Chief Judicial Magistrate of offences u/ Section 304 and 304 IPC and that u/Sections 304, 304A and 504 IPC in these two cases respectively, the cases were transferred to Sri Ajit Kumar, Judicial Magistrate, 1st Class u/Section 192 Code of Criminal Procedure for disposal.

THE complainant has filed these two cases before this Commission alleging that the complainant has suffered great loss besides mental agony due to the loss of his son on account of "fault in performance of duty" on the part of the Opposite Parties in the two cases and has claimed rupees ten lakhs as compensation against each of the two doctors. On being noticed the Opposite Parties in the two respective cases appeared and filed their respective counter version. Dr. (Mrs.) Mishra in her counter version has stated that Mrs. Bibha Nath-the complainant''s wife was brought for check up to her Nursing Home on 1.8.91; that Mrs. Bibha Nath had histrory of two previous abortions; that her third pregnancy was "a case of breach pregnancy, i.e.; the position of that baby inside the womb of the mother was wrong" and that the expected date of delivery was 11th September, 91. She has further stated that on 13.8.91 Mrs. Bibha Nath was brought to her Nursing Home with ruptured Membrane and taking into consideration the history of two previous abortions operation was essential to save the life of the child and on 13.8.91 Mrs. Bibha Nath was operated upon after taking the consent of the complainant; and that every step was taken for safe delivery and to save the life of the child, but as the child was not in normal condition in the womb, he developed breathing trouble 10-12 hours after his birth and hence the complainant was advised to get him admitted in the clinic of Dr. Kumar where there is facility of Incubation.

DR. Kumar in his written version has stated that the child was admitted in his Nursing Home and kept in an Incubator and in spite of utmost care the child died on the night between 15th/16th August, 1991. Both Dr. (Mrs.) Mishra and Dr. Kumar have in their respective counter version stoutly denied and disputed the allegations made by the complainant that the child died due to deriliction and fault in their professional duty and both of them have asserted that every care was taken by them to save the child, but it could not be done due to his premature birth and they have refuted the claim of the complainant for compensation. The Opposite Party in both the cases have taken preliminary objection against the maintainability of the complaint petition on the ground that it is apparent from the facts mentioned in the complaint petition that the subject matter of the case is subjudice before a Criminal Court and a concurrent adjudication in respect of the same should not be conducted by this Commission under the Act. In view of the preliminary objection regarding the maintainability of the case the parties have been heard on this question. The complainant who is an Advocate appeared in person and learned Counsels appeared on behalf of the O.P. in the two respective cases.

IT is evident from the facts stated above while narrating the case of the complainant, that the complainant filed Criminal Cases before filing the two instant cases before this Commission against the Opposite Party alleging commission of offences u/ Sections 304 and 304A of Indian Penal Code by them and also of offence u/Section 504 IPC by Dr. Kumar. On being asked by the Commission the complainant has filed photo copies of the complaint petitions in the two Criminal Cases from which it appears that the facts stated in those complaint petitions are almost verbatim the same as disclosed in the complaint petitions before this Commission. As a matter of policy and principle where the subject matter of a complaint is subjudice before ordinary Courts, a concurrent adjudication in respect of the same should not be conducted under the Act by a Redressal Agency under the Act. We are fortified in our view by the observations of the National Commission in the case of M/s. Special Machinces v. Punjab National Bank I (1991) CPJ 78 (NC) and in the case of Santosh Sharma v. State Bank of India & Others, II (1991) CPJ 262 (NC).

AS it appeared to us that the dispute between the parties was likely to be resolved amicably, the case was adjourned on several dates, but in vain. In the meantime the Judicial Magistrate proceeded with the cases transferred to him by the Chief Judicial Magistrate. Before the transferee Judicial Magistrate the complainant examined himself and two more witnesses in enquiry u/Section 202 Cr.P.C. and the transferee Magistrate has recorded his finding that no prima facie case is made out and there is no sufficient ground for proceeding and hence dismissed the two Complaint Cases. It may be noticed that at least for the offence alleged to have been committed by the Opposite Party in the two Criminal Cases u/Section 304A, the Judicial Magistrate had to examine if there was negligence on the part of the two doctors which caused the death of the child. In view of the finding of the Judicial Magistrate that no prima facie case is made out and hence his finding being in the negative on this point, it will be against public polity and principle to hold an enquiry into that factual question if there was negligence on the part of the two doctors to decide if the complainant is entitled to relief u/Section 14(1)(d) of the Act. The complainant has submitted that he has filed revision before the Hon''ble High Court, Patna against the order passed by the Judicial Magistrate in the two cases and he has filed photo stat copies of the two petitions u/ Sections 397 and 401 of the Code of Civil Procedure filed by him before the Hon''ble High Court. Hence the subject matter is subjudice before the Hon''ble High Court.

For these reasons we are constrained to dismiss the two Complaint Petitions. There is no order as to costs. Complaints dismissed.