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Judgment
K.S. Chaudhari, Presiding Member
[1] These revision petitions arise out of single order of State Commission; hence, decided by common order.
[2] These revision petitions have been filed by the petitioners against the order dated 30.04.2012 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ''the State Commission'') in Appeal No. 627 of 2011 A.P. Sugathan Vs. Duty Doctor ESI Hospital by which, while allowing appeal, order of District Forum dismissing complaint was set aside and complaint was partly allowed.
[3] Brief facts of the case are that complainant/respondent no.1 was a worker in Mat and Mattings in Cherthala having ESI benefits. On 10.1.2005 he consulted OP ESI doctor on complaints of body pain and fever. He was examined by the doctor and after blood tests he was admitted suspecting typhoid. He was administered paracetamol injection on the left arm by the duty nurse. He felt irritation at the time of injection itself. Subsequently his hand became stiff and there was swelling. He was referred to MCH, Alappuzha on the same day. There he was an inpatient at MCH upto 25.1.2005. His left shoulder portion got completely paralysed and there was severe swelling and inflammation. At one point of time it was even proposed to amputate the hand. He still having numbness of the left hand and is unable to do any work. The complication was occasioned on account of the negligence of the doctor and duty nurse who are opposite parties 1 and 2. Alleging deficiency on the part of OP no. 1, 2 & 3, complainant filed complaint before District Forum. OP No. 1,2 & 3 resisted complaint and denied all the allegations and denied any deficiency on their part. It was further submitted that he was referred from ESI, Cherthala suspecting malaria. After blood tests the affliction of malaria was ruled out. As it was noted that he had fever for 2 weeks he was admitted. As he had fever 100.40 at 3pm and body pain he was administered with paracetamol injection on the left upper deltoid portion. He was not told that it is suspected that he had typhoid. After injection, by about 4pm complainant had told the nurse about the pain on the hand. There was no swelling or numbness. The duty nurse applied fomentation at the spot. Later at 6pm again he complained of pain of the hand and he was brought to the casualty by the nurse He was examined by the duty doctor. At the time there was slight swelling. Although there was no such problem he was referred to Medical College Hospital. There was no negligence at all on the part of the opposite parties and prayed for dismissal of complaint. Learned District Forum suo moto impleaded OP No. 4 & 5 as parties and without giving them an opportunity of filing written statement, after hearing all the parties dismissed complaint. Complainant filed appeal before State Commission and learned State Commission vide impugned order allowed appeal and directed OPs jointly and severally to pay Rs.50,000/- as compensation with 9% p.a. interest from 8.6.2005 and further awarded cost of Rs.7,500/- against which aforesaid three revision petitions have been filed by OPs. OP No. 4 & 5 also filed application for condonation of delay along with revision petition.
[4] Heard learned Counsel for the parties and perused record.
[5] As far delay of 262 days in filing revision petition No. 2104 of 2013 is concerned, learned Counsel for the petitioner submitted that earlier it was decided not to challenge the order, but later on after receiving notice of other revision petitions filed by other OPs it was decided to file revision petition and in this process, delay was caused. Perusal of record reveals that in other revision petitions notices were issued to OP No. 4 & 5 and later they decided to file revision petition in which process, delay of 262 days occurred. No doubt, there is delay of 262 days in filing revision petition, but as impugned order had already been challenged in other two revision petitions and prima facie wrong order against OP No. 4 & 5 has been passed, I deem it appropriate to condone delay subject to cost. Consequently, application for condonation of delay is allowed subject to payment of cost of Rs. 5,000/- to respondent no.1/complainant.
[6] Learned Counsel for the petitioners / OP No. 1, 2 & 3 submitted that inspite of no proof of payment of any consideration by complainant and negligence on their part, learned State Commission committed error in allowing appeal hence, revision petition be allowed and impugned order be set aside. Learned Counsel for petitioners/OP No. 4 & 5 submitted that inspite of no opportunity to petitioner to file written statement before District Form and no liability on their part, learned State Commission committed error in allowing appeal against them; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the complainant submitted that order passed by learned State Commission is in accordance with law; hence, revision petitions be dismissed.
[7] As far liability of OP No. 4 & 5 is concerned, admittedly complainant filed complaint only against OP No. 1, 2 & 3 in which names of OPs were not given but only Duty Doctor, Duty Nurse and Superintendent were impleaded as a party. At what stage OP No. 4 & 5 were impleaded as a party is not clear from order of District Forum. Learned Counsel for OP has drawn my attention towards memo of appeal filed by complainant before State Commission in which it was mentioned that complainant filed complaint only against first three OPs and impleadment of 4th & 5th OPs suo moto is untenable. This statement makes it clear that OP No. 4 & 5 were impleaded by learned District forum while deciding complaint without any request on the part of any party and dismissed complaint. When no opportunity was given to OP No. 4 & 5 to file written statement and contest complaint there was no occasion for learned State Commission to allow appeal against them and held them jointly and severally liable. In such circumstances, order passed by learned State Commission against OP No. 4 & 5 is liable to set aside on the ground of principles of natural justice as no one can be condemned without giving an opportunity of being heard.
[8] Learned Counsel for the petitioners submitted that services rendered by OP to the complainant were without consideration; hence, complainant did not fall within purview of consumer and in such circumstances, complaint is liable to be dismissed against them. Perusal of complaint does not disclose that any consideration was paid by complainant to OPs. Learned Counsel for the complainant could not show me any pleadings in the complaint or any evidence put on record to substantiate that any consideration was paid by complainant for services taken by him. Admittedly, OPs are employed in ESI hospital, Beach Ward where complainant took treatment. OPs in their written statement have clearly stated that they are Government employees working under the Health Department. This fact is not disputed by the complainant that OP is a Government hospital.
[9] Hon''ble Apex Court in Indian Medical Association Vs. V.P. Shantha & Ors., 1996 AIR(SC) 550 observed as under: "(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression ''service'' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
Complainant has not placed any evidence on record to prove that he has made payment to OP for rendering service or OP charges from any person for availing service. In such circumstances, complainant does not fall within purview of consumer and learned State Commission committed error in allowing complaint.
[10] Admittedly, OP No.1/Dr. Geetha has not administered any injection. She has only prescribed injection which was given by Duty Nurse/OP No. 2. Nowhere it has been pleaded that wrong injection was prescribed by OP No. 1 and learned Counsel for the complainant during course of arguments also did not draw my attention towards any negligence on the part of OP No.1 in prescribing injection and in such circumstances, OP No.1 is not liable for any deficiency; even then, learned State Commission committed error in allowing complaint against OP No.1 and to this extent, revision petition is to be allowed.
[11] Learned Counsel for the complainant has focused on the negligence of only OP No. 2, who administered injection in a wrong manner on account of which, swelling was caused and complainant had to remain hospitalized for more than 15 days. Leaned State Commission observed that liability lies squarely on OP No. 2/Duty Nurse and other OPs are vicariously liable. It was further observed that there was no evidence to substantiate the case that complainant sustained permanent disability. Compensation has been awarded on account of some sufferings by the complainant, who was a manual labour and for loss of earnings and ancillary expenses incurred during the period of treatment.
[12] Perusal of MCH discharge card reveals that complainant was referred by ESI hospital on account of pain, swelling of numbness on left arm, deltoid swelling on account of paracetamol injection. Learned State Commission further observed that on ultra sound scan it was found that there was ill defined hypoechoic area in deltoid muscle and there was no puss. Discharge card further reveals that problem was not due to nerve injury, but there was important narrowing of cervical spine. RW3 Dr. Shaji C.V., who was Asstt. Professor of Neurology opined that there was possibility of numbness due to narrowing of cervical spine 5 & 6. It was further opined that there was no possibility for sudden numbness because of deltoid. No doubt, in cross-examination he admitted that due to carelessness while taking injection there can be swelling, but only on the basis of this opinion it cannot be inferred that swelling was caused due to negligence in administering injection, but it appears that it occurred due to narrowing of cervical spine. In such circumstances, prima facie, there was no negligence on the part of OP No. 2 in administering injection and learned District forum rightly dismissed complaint, but learned State Commission committed error in allowing complaint and awarding compensation without proof of negligence on the part of OP No. 2.
[13] In the light of aforesaid discussion, it becomes clear that complainant does not fall within purview of consumer; even then, learned State Commission committed error in allowing complaint and holding OPs vicariously liable on account of negligence of OP No. 2 without any justification and impugned order is liable to set aside.
[14] Consequently, revision petitions filed by the petitioners are allowed and impugned order dated 30.04.2012 passed by the learned State Commission in Appeal No. 627 of 2011 A.P. Sugathan Vs. Duty Doctor ESI Hospital is set aside and order of District Forum dismissing complaint is upheld. Petitioners in R.P. No. 2104 of 2013 are directed to make payment of cost of Rs.5,000/- within two months from today to the complainant failing which, revision petition shall stand dismissed as barred by limitation.