KALU RAM vs KANA RAM, Compounder

HEARD the learned Counsel for the parties.

THE grievance of the petitioner is that his wife Smt. Barji, aged 27 years was carrying 7 months pregnancy. On 8th November, 1995, the complainant took her wife to the respondent Kana Ram at his Clinic situated at Palsana. Kana Ram advised abortion. Believing Kana Ram that he could perform abortion, he paid Rs. 250/- towards fee. Kana Ram performed abortion and nearly over 1 kg. of parts of the intestine, etc. were taken out negligently. At about 7 p.m., Kalu Ram took his wife to the residence as advised by Kana Ram. Her condition started deteriorating. On 15th November, 1995, Kalu Ram again took his wife to Kana Ram who informed the complainant that further cleaning was required to clear her womb. He charged Rs. 180/- again. Kana Ram again undertook cleaning and some more parts of intestine were taken out. Kana Ram advised Kalu Ram to again bring his wife the next day i.e. on 16th November, 1995 for administering injection. Kalu Ram again took her wife to Kana Ram. Kana Ram administered injection to his wife but she died all of a sudden at the Clinic of Kana Ram. Kana Ram advised Kalu Ram to take her wife to his residence immediately and asked Kalu Ram not to disclose these facts to anybody. After performing last rites, however, Kalu Ram lodged report with the police. Kana Ram had got neither any experience of doing abortion nor was authorised to do so. Ultimately, the complainant/petitioner filed complaint, claiming compensation of Rs. 4.00 lakh. The respondent Kana Ram in his written version denied the allegations and claimed that he was not at all running a private clinic at Palsana though he was a Compounder at Government Health Centre, Palsana. According to the written version of Kana Ram, this address was given for the purpose of name and address and there is no specific denial about running of private clinic for he mentioned in response to para 2 of the complaint that it did not require any further reply. The respondent further denied that he performed operation or on account of his negligence, the death of the wife of the complainant took place.

We have heard the learned Counsel for the parties and gone through the record.

THE District Forum after considering the evidence on record have ordered a compensation of Rs. 1.00 lakh to the complainant. Feeling aggrieved by the order of the District Forum, an appeal was filed before the State Commission and the State Commission held that the District Forum decided the matter on surmises for it appeared unnatural that a person would take his wife in case of pregnancy directly to a person of the level of Compounder and would allow him to perform operation. The State Commission allowed the appeal and dismissed the complaint.

WE have heard learned Counsel for the parties and gone through the record. After hearing the parties, we feel that the observations of the State Commission did not take into consideration the working condition in Primary Health Centre in remote villages. At times, either the doctors are not posted and if posted, they remain absent and the entire work of giving medicine, administering injection and performing small operations in the name of cleaning wounds and dressing is being done sometimes by the Compounders or by the Nurses. One could also not be oblivious to the fact that sometimes the concerned doctor in order to protect themselves on account of unauthorised absence just connive at such a situation. Ignoring this aspect, could there be any plausible reason for a complainant to falsely implicate a Compounder or a Male Nurse in such a matter? WE believe that it could not be so. Nobody would deny that the wife of the complainant died. The District Hospital is situated at a distance of 28 kms. as stated by the Counsel for the respondent. The representations made to Kalu Ram by Kana Ram could not be ignored. Though, there could not be any dispute about the fact that the complainant should have approached a qualified doctor. Yet sometimes innocent persons do take risk on such kinds of misrepresentations. But one could also not ignore the causes involved; namely illiteracy and ignorance misrepresentations, the scare and "emergency" created by real and deceiving representations made by persons like Kana Ram and the time required to take the patient to the District Hospital or to a doctor located at a distant place and the risk involved therein. In the light of the representations made by the male nurse/compounder. The circumstances in the matter do support the case of the complainant that late Smt. Barji was treated by the respondent on the false representations made by Kana Ram. Kana Ram was not authorised to undertake such task of operation and at least should not have called the patient on second day or third day and should not have administered the injection. He was not competent to do this. In these circumstances, we could not even get any medical record. He could only do dressing and administer injection under the prescription of a doctor. Here it would be worthwhile to reproduce observations made by the Supreme Court in Poonam Verma v. Ashwin Patel and Ors., II (1996) CPJ 1 (SC)=(1996) 4 SCC 332 in paras 14, 15, 16, 42, 43 and 49. They read as under: "(14) Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.

(15) The definition involves the following constituents: (i) a legal duty to exercise due care; (ii) breach of the duty; and (iii) consequential damages.

(16) The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or by doing some act which a reasonable prudent man would not do.

(42) Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black''s Law Dictionary as under- Negligence per se-Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.

(43) A person who does not have knowledge of a particular system of medicine but practises in that system is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan.

(49) But we are of the positive opinion that respondent 1, having practised in Allopathy, without being qualified in that system, was guilty of negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim sic utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence), leaving it to repeat to himself the words of Dr. J.C. Lettsom (On himself)-

"When people''s ill, they comes to I, physics, bleeds, and sweats ''em; Sometimes they live, sometimes they die. What''s that to I? Lets ''em."

In the light of aforesaid discussion and observations of the Supreme Court since he has exceeded his limits, denied the basic facts of treatment, naturally he has to be held also for suppressing the evidence and deficient in rendering the medical services.

IN the aforementioned circumstances, we hold that Kana Ram is responsible for undertaking the abortion unauthorisedly, without taking proper precaution and administring injection without there being any prescription i.e. a job which he was not qualified to perform and accordingly responsible for rendering deficient medical service.

COMING now to the point of compensation, the District Forum awarded a compensation of Rs. 1.00 lakh. The deceased was of the age of 27 years. The deceased had left three daughters aged about 8 years, 4 years and 3 years. If we calculate real value the services rendered by a housewife, it would be much more than what an ordinary husband would earn in ordinary course. In any case she was supposed to bring up 3 minor daughters and cook meals for them and her husband. Could these services be made available for anything less than Rs. 750/- per month leave aside loss of love and affection for the children and other work done? Calculating monetary loss on this meagre amount would be Rs. 750 x 12 = Rs. 9,000/- per year and for 15 years it would be Rs.1,35,000/-. If the District Forum has awarded compensation of the Rs. 1.00 lakh, we feel that the State Commission should not have interfered with the impugned order. However, taking into consideration the facts and circumstances of this case and the fact that the compensation of Rs. 1.00 lakh awarded by the District Forum has already been paid immediately after passing of the award by the District Forum to the complainant, we are not inclined to enhance the amount. For the aforesaid reasons, the impugned order is set aside, the revision petition is allowed; impugned order is set aside by awarding Rs. 1.00 lakh as compensation which has already been paid as aforesaid. The revision petition stands disposed of accordingly. Revision Petition allowed.