N.C.SARIN vs MOOLCHAND KHARAITIRAM HOSPITAL

BY this order we proposed to deal with a preliminary objection raised on behalf of the opposite parties.

BRIEF facts averred in the complaint are that the deceased, Smt. Vidhya Sarin, 64 retired Government School teacher, developed backache on 27.12.91. Taking no risk she was taken to Moolchand Kharaitiram Hospital, Lajpat Nagar, New Delhi. The case of the complainant is that even though the pain went on increasing and became unbearable, the opposite party, even after getting Smt. Vidhya Sarin admitted to the hospital, failed to give necessary treatment or to shift her to Intensive Care Unit or call a senior consultant, to attend to her problem. Because of the aforesaid acts of negligence the condition of Mst. Vidhya Sarin worsened. Ultimately she suffered cardiac arrest and died. Further case of the complainant is that no resuscitative efforts were made to revive her or to administer life saving drugs to her. On the opposite party''s pointing out that the hospital had taken out insurance policy relating to the relevant period, New India Assurance Company was impleaded but inspite of notice no appearance has been entered by the Insurance Company. The others impleaded are the hospital and doctors, Opposite party No. 2 (opposite party) to opposite party No. 6 and nurses as opposite party Nos. 7 and 8 besides the Insurance Company. Detailed written version has been filed on behalf of opposite parties 1,2,4,5,7 & 8. The various averments have been controverted. The main objection is that medical services are not covered by the provisions of the Consumer Protection Act, 1''986. Opposite Party No. 1 had filed a writ petition in the High Court challenging the vires of the Consumer Protection Act in so far as medical services are concerned. It has been stated that Dr. Anil Malik was closely related to the deceased as her daughter was married to Dr. Anil''s real brother. Because "of the aforesaid relationship and Dr. Malik serving in the hospital, the deceased was given a special treatment and amongst others Dr. Anil Malik himself attended to her. With regard to Dr. Malik it was stated that apart from holding post-graduate qualifications he had a large experience. It was also stated that the deceased was suffering from big irreducible hernia alongwith ulcer which was infected at the top. She was also an old case of hypertension and had been using ''Lassix and ''Envas''. It was also pleaded that various injections including Pothedine were given and the case sheet was unfortunately mis-placed. A report was lodged with the police in this behalf and from all available sources, the case sheet had since been practically fully re-constructed. It was also pleaded that the hospital at its own level constituted a Committee of three senior doctors to examine various doctors and nurses connected with the treatment of the deceased and they had prepared their report dated 7.2.92. According to the Committee, there was no case of negligence arid all efforts for resuscitation had been made.

The contention of Mr. S.S. Das, learned Counsel for the complainant is that with the decision of the Supreme Court in Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), it had been settled that medical services as such are not outside the purview of the Consumer Protection Act. In view of the said decision, it was submitted that there was no difficulty in proceeding further with the case.

THE contention of Mr. Puneet Arora, Counsel for the opposite party on the other hand, is that the proceedings before the Fora are required to be summary in nature whereas the present case contained a large number of disputed questions of fact which are required to be gone into and which can possibly be established or demolished on the basis of examination, cross-examination of witnesses and production of a large number of documents. In the facts of the present case, therefore, the contention of Mr. Arora is that the complainant be relegated to his remedy by an ordinary Civil Suit, if so advised. We have carefully gone through the averments made in the complaint and the reply filed by the opposite parties. We have also taken into consideration the material placed on record in order to ascertain the salient features of the case. We are clearly of the view that in order to prove the facts averred by the complainant and those averred in reply by the opposite parties, it will be necessary to examine a large number of witnesses and produce documentary evidence. In the particular context of the facts and circumstances of this case one hopes that truth will come out only as a result of thorough crossexamination of the witnesses concerned. We are not expected to undertake such an enquiry. This is not one of such cases where negligence on the part of the hospital or doctors is so palpable that it can be called gross-negligence. In making this observation we do not, in the least, intend to express any opinion on the merits of the case. We only intend to say that having regard to the salient features of this case we do not think that a case has been made out which can be dealt with and disposed of by the FORA constituted under the Consumer Protection Act. We accordingly, dispose of the complaint leaving it open to the complainant to have his remedy in the Civil Court. A copy of this order be conveyed to the parties. Complaint disposed of.