ORISSA NURSING HOME vs ANUREKHA SAHOO

-THESE are cross appeals against the order of 6th July, 1992 passed by the State Commission of Orissa in Case No. 47 of 1990. For convenience we will describe Smt. Anurekha Sahoo who is respondent in First Appeal No. 312 and who is appellant in Appeal No. 451 of 1992 as the complainant and Orissa Nursing Home and others the Appellant in Appeal No. 312 and respondents in Appeal No. 451 as the Opposite Parties. The State Commission awarded Rs. 1 lakh to the complainant as compensation.

ACCORDING to the complainant she was pregnant and the expected date of delivery was 24th February, 1990. However, on the 27th of January, 1990 she experienced pain resembling labour pains and was shifted to the nursing home of the Opposite Parties. ACCORDING to her she was injected with a wrong medicine (Syntocinon), in order to induce labour. She was operated upon for taking out the child who could not emerge and who could not be pulled out by use of surgical instruments. The complainant was in severe pain throughout. When the attempt to pull out the child failed, the child was pushed back into the uterus and the vaginal area was stitched up. Thereafter on 30th January, 1990 she was Shifted to S.C.B. Medical College and Hospital atCuttack. They found her uterus ruptured, and the head of the foetus perforated. After operation her child was brought out and it is alleged that he has died due to surgical intervention. The complainant''s life was also in danger but she has eventually recovered and discharged from the hospital on the 30th of February, 1990. According to the complainant, as a result of the deficiency in treatment by the Opposite Parties, she lost her uterus and the child she was carrying and also lost the ability to bear children for the rest of her life.

The Opposite Parties have denied the allegations of the complainant in their rejoinder to the complainant''s appeal before this Commission. They have denied any deficiency in service on their part and averred that the complaint before the State Commission was false. The administration of Syntocinon has also been denied or that any operation was performed for the purpose of delivery. The version of the Opposite Parties is that after the examination, they had found that the complainant was carrying a dead child and on 29th of January, 1990 she was operated upon to bring the dead child in the womb who could not come out due to some obstructions. As the condition of the complainant was critical she was removed to the S.C.B. Medical College for treatment.

IT is not necessary to deal with the facts of the case further for the purpose of disposal of this appeal against the order of the State Commission. The order of the State Commission under challenge does not give the facts of the case. In fact in the Cross Appeal No. 451, the complainant Smt. Sahoo has herself observed that the State Commission failed to record any finding concerning the facts of the case, the pain and suffering undergone and her narrow escape from death and also the death of the child she was carrying. The order does not give any finding as to whether there was any deficiency in service, i.e., in the treatment given to the complainant by the Opposite Parties. All that it has noticed is that criminal prosecution is pending in the Court of law for part of the causes of action which gave rise to the complaint before the State Commission (page 3 of First Appeal) No. 312 of 1992). Further the State Commission took notice of a settlement said to have been arrived at between the parties on the 21st of January, 1992. Before the State Commission the Counsel for the complainant repudiated that any such settlement had been arrived at. Consequently, the State Commission called upon the parties to file an affidavit regarding a settlement having been arrived at between the parties. This settlement has been reproduced from a xerox copy of the record of the State Commission. Further, according to the complainant, as a part of the settlement she was to receive Rs. 1.15 lakhs whereas only Rs. 50,000/- was paid to her. After examining the matter at some length, the State Commission came to the conclusion that the settlement was out of Court and had not been filed before the State Commission and therefore, "we cannot act upon such settlement". The complainant in her appeal has observed that the State Commission has taken refuge in an illegal contract and the judgment of the State Commission was entirely unsustainable.

AS regards the substantive question of negligence in treatment, or deficiency of service in the nursing home, the State Commission observed that "in the complaint there is no allegation that there was contract for payment or payment had acutally been made either in part or in full. Normally, deficiency of a person rendering service without payment would not come within the scope of Consumer Protection Act. In the objection filed it has been stated that complainant was admitted for treatment totally free of charges for circumstances indicated therein". After making these observations the State Commission stated that "in the peculiar circumstances of this case we are inclined to hold that the service rendered in the Nursing Home was for payment. This finding is given by us (the State Commission) in the peculiar circumstances where not only Opposite Parties agreed to pay Rs. l,00,000/- as stated by them, but also paid the same to the gentlemen in part performances of their part in the settlement. A cheque for Rs. 50,000/- has been, received by the complainant and another Rs. 50,000/- lies with the gentlemen for payment." We are surprised at the circumlocutory manner in which the State Commission has given the finding of payment having been made for the service rendered by the Nursing Home. It had recorded categorically that there was no contract for payment or no payment had actually been made either in part or in full and that except for the admission in the objection stipulated by affidavit no material had been produced to corroborate it that the payment had been made to the Nursing Home. Again, the State Commission had stated that "we cannot act upon such settlement". Having said that, it has based its conclusion that the service was rendered by the Nursing Home on the same settlement. As regards the allegation about the deficiency in service, the State Commission made its finding on the following facts: "Where a Nursing Home admits a patient and is not able to explain before us the circumstances under which a patient had to be shifted to another hospital and it is not explained that the patient on examination did not have sufferings which would require sophisticated treatment of a Medical College Hospital, we are inclined to hold that admission and continuance of such patient in the Nursing Home is a deficiency in service".

WE are surprised, to say the least, that a finding of deficiency in treatment is based on such tenuous, nay indirect, evidence which is really in the nature of mere conjecture. The allegations of the complainant which can amount to deficiency in service are quite serious; administration of Syntocinon and abortive surgical operation which caused the death of the child which the complainant was carrying and also caused physical damage to her. There is no finding whatsoever in the order of the State Commission on these allegations.

THE State Commission has given a finding against the Nursing Home on the ground "since the proprietor of the Nursing Home has come forward to state the case, we make him liable for the amount. It is no doubt true that he is not a party to the settlement. However, Opposite Party No. 1(b) who is father of the proprietor is a party to the settlement. Accordingly, payment by the father for deficiency in service in the Nursing Home of the son can be adjusted..". We are unable to appreciate the reasoning of the State Commission for holding the Nursing Home liable for the alleged deficiency in service about which we have already made our observations above. It is by virtue of such an order that the State Commission ordered that the complainant was entitled to Rupees one lakh as compensation on account of deficiency in service by the Opposite Party. Such an order of the State Commission, on the face of it, is unsustainable and has to be set aside.

In her Cross Appeal No. 451 of the complainant Smt. Anurekha Sahoo, after attacking the order of the State Commission for its failure to note the facts of the case and declaring that the settlement was an illegal contract (already referred to above), we have to take note of para 16 of her appeal where she has stated as under: "During the pendency of the matter before the State Commission, the appellant found that the respondents were trying to win over witnesses and the police. When a proposal for a compromise was put forward by the respondents, the appellant was advised to feign to accept it as the respondents'' guilt would be obvious and her case would be strengthened. A compromise dated 21.1.1992 was signed by the appellant, and respondents 2 and 3 only (who did not appear before the State Commission) whereby the appellant''s claim was sought to be settled against a payment of Rs. 1,15,000/- and part payment of Rs. 50,000/- was made to her by third parties who were acting on behalf of the respondents. The appellant subsequently resiled from the compromise and filed an affidavit explaining her reasons for resiling...".

She herself asserts that the compromise was illegal and incapable of being enforced inasmuch as it records, inter alia, an agreement to withdraw prosecutions for offences which are not compoundable.

THIS is a very damaging admission on the part of the complainant-appellant. It also complicates the facts of the case. We do not think that this case should be adjudicated upon by the Consumer Forum. In fitness of things the complainant may prosecute her claim for damages in a Civil Court if she is so advised. The order of the State Commission is set aside and F.A. No. 312 of 1992 is allowed. It is made clear that the direction prayed for by the complainant in that appeal for the refund of Rs. 50,000/- is not being allowed under this order. F.A.No. 451 of 1992 is dismissed. There is no order as to costs. F.A. No. 312 of 1992 allowed. F.A. No. 451 of 1992 dismissed.