K.K.Jaiswal vs Amrik Kaur

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 07.09.2012, passed by the Haryana State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 873/2011, ''''Dr. K.K. Jaiswal & Anr. versus Amrik Kaur'''', vide which appeal against the order dated 30.05.2011 passed by the District Consumer Disputes Redressal Forum, Kaithal, allowing the consumer complaint in question, was dismissed.

BRIEF facts of the case are that the petitioners are running a clinic-cum-hospital under the name Navjeevan Hospital and Maternity Home at Hafed Road, Cheeka, District Kaithal Haryana. It has been alleged by the complainant that she became pregnant and had been taking treatment from this hospital from the very beginning. She was taken to the hospital on 8.01.2004, when her labour pains started. The Doctors were fully aware that she had history of previous lower segment caesarean section, but still, the doctors gave her trial of labour, despite regular severe pain. They treated her in a routine and negligent manner and ultimately, she was taken to the labour room, where she gave birth to a female child at 4:30 AM on 09.01.2004. She started having excessive bleeding and her uterus was ruptured. The petitioner/OP advised her husband to go to some other Doctor, but because of her bad condition, they requested the petitioner not to discharge her. However, she was still discharged by the OP hospital and was taken to Mittal Nursing Home on 09.01.2004. She was given blood transfusion in that hospital, but ultimately, her uterus had to be removed. The complainant remained admitted at Mittal Nursing Home till 19.01.2004. The complainant has stated that they made repeated requests to the respondent/OP to compensate her sufficiently on account of mental harassment etc., but they ignored their requests. She then filed consumer complaint in question demanding compensation of Rs.5 lakh from them. On the other hand, the case of the respondent/OP is that pre-natal treatment was obtained by the complainant from the respondents, but the delivery was never conducted in their hospital. The complainant was brought to the hospital on 09.01.2004 at 4 AM, when the delivery had already taken place at their village by some Dhai (midwife). The complainant was examined by the respondent, and it was found to be a case of PPH (Post Partem Haemorrhage). The petitioner/OP provided the packing etc. to the complainant and referred her to Kaithal for further necessary treatment. Since the complainant was bleeding profusely at that time, the petitioner filled a form with regard to requisition of blood for her. There was, therefore, no deficiency in service on their part. The District Forum vide their order dated 30.05.2011 allowed the complaint and directed the petitioner/OP to pay Rs.2 lakh to the complainant as damages towards physical disability, mental agony, financial loss, harassment etc. and also directed to pay Rs.10,000/- as litigation expenses. An appeal filed by the present petitioners before the State Commission was also dismissed vide impugned order. It is against this order that the present petition has been made.

AT the time of hearing before us, the learned counsel for the petitioner pleaded that the complainant came to their hospital early morning on 9.1.2004, when the delivery of the child had already taken place. She was examined by the petitioners and immediately referred to the hospital at Kaithal. The Form for requisition of blood was filled by the petitioners, looking at the condition of the complainant. Referring to copy of the birth certificate, stated to have been issued by their hospital, saying that the complainant had given birth to a female child at their hospital, the petitioner stated that the said certificate did not bear any signatures. Since the complainant gave birth to a child at her native place with the help of a midwife, there was no question of any negligence on their part.

ON the other hand, counsel for the respondent referred to the orders passed by the District Forum and the State Commission, saying that both the courts below had found the complaint to be genuine and granted relief to the complainant. She also referred to the written statement of the petitioners filed before the District Forum, saying that they had admitted that the complainant reached their hospital on 09.01.2004 at 4 AM. She also mentioned that the petitioner/OP were not competent to handle such cases, as none of them was a surgeon or a gynaecologist. In fact, their qualification was BAMS, and hence they were negligent in handling the case of the complainant. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is a fact admitted between both the parties that the complainant had been getting pre -natal treatment at Navjeevan Hospital and Maternity Home. The case of the complainant is that after her labour pains started, she was admitted in the hospital of the petitioners, where they unnecessarily waited for normal delivery, fully knowing the fact that she had a caesarean operation during the first pregnancy. As a result, the second child was born in the hospital of the petitioner but in the process, her uterus got ruptured and them she had been taken to Mittal nursing Home, where her further treatment was done and her uterus was removed. However, the case of the petitioners is this that the complainant came to them after the child had already been born and looking at her condition, they referred her to the Mittal Nursing Home.

A perusal of the order passed by the State Commission reveals that the State Commission observed that there was negligence on the part of the OP No. 1, while conducting the procedure of the complainant ''for removal of uterus ''. The State Commission have observed at two places in their order that the petitioners did not exercise due care and caution, while they performing the ''operation of the removal of uterus '' and hence, there was breach of duty on their part and liability has to be imposed upon them for the damage suffered by the victim. The facts of the case and the contents of the complaint make it very clear that the operation for removal of uterus was done in Mittal Nursing Home and there is no controversy or complaint regarding the role played by Mittal Nursing Home. The order passed by the State Commission, therefore, suffers from a grave perversity, because it is based on wrong facts and hence this order deserves to be set aside on this ground alone.

NOW , coming to the role of the petitioners, there does not seem to be any evidence to support the fact that the complainant was admitted in the hospital of the petitioners before her delivery. The birth certificate brought on record shows it clearly that it is not signed by anybody and hence it cannot be concluded that the child was born in the hospital of the OPs. Regarding the blood requisition slip, the petitioners have admitted that they did sign the papers for requisition of blood, but they did so looking at the condition of the complainant. In the light of the above discussion, it is made out that negligence on the part of the petitioners has not been proved from record and hence, they are not liable to give any compensation to the complainant. Further, the complaint in question is dated 19.01.2006, whereas the delivery of the child took place on 09.01.2004 meaning thereby that the complaint has been filed after more than 2 years of the alleged cause of action. The complaint is, therefore, time-barred in accordance with section 24(A) of the Consumer Protection Act, 1986. The argument given by the District Forum that it was a case of continuing cause of action which arose to the complainant from 09.01.2004 to 19.01.2004 is not based on any sound reasoning. The complainant has also not given any reasons for not filing the complaint earlier.

FROM the above discussion, it is made out that the complaint deserves to be dismissed. The instant revision petition is, therefore, allowed, the orders passed by the State Commission and District Forum are set aside and the consumer complaint is ordered to be dismissed with no order as to costs.