RAMESH KUMAR vs Akhil Saxena

THE Complainant, Sh. Ramesh Kumar, filed this complaint against Dr. Akhil Saxena and others, the opposite parties, alleging medical negligence during the treatment of his wife, Smt. Anita Khatri (in short "Patient") which resulted in untimely death. He has arrayed total 11 opposite parties, which consists of 7 doctors, 2 hospitals, and 2 blood banks, as mentioned in the Cause title. Complainant further alleged that there was a breach of duty by the treating doctors, the medical records are incomplete, inconsistent and show tampering of the same. The patient suffered complications due to blood transfusion, which was transfused on the date of expiry, therefore, possibility of contamination cannot be ruled out. The patient was suffering from borderline Cardiomegaly and urinary infection, even though she was operated for fibroid uterus. The OP did not give proper prophylaxis prior to surgery. No pre -operative tests were conducted. The operation was not properly monitored and the general anesthesia was not proper. During post -operative period, the patient suffered pulmonary embolism which the OP should have been anticipated. It requires intensive management having advance cardiopulmonary facilities, which were not available with the OP -Saxena Hospital. The patient was not given ventilator supports which finally lead to septicemia, multi -organ failure, death of the patient, on 29.12.2010. Thus, the doctors did not follow the standard of medical practice; there was no proper referral and the complications management. OP did not conduct the Post mortem, even after request.

WE have perused the complaint and the documents on file. We have noted that on 5.7.2011, Haryana Medical Council dismissed the complaint of the Complainant. Further, on 30.12.2011, Delhi Medical Council dismissed the complaint of the Complainant. Appeal was filed before the Medical Council of India; it was decided in favour of complainant on 19.6.2013. held that "The treating doctors namely, Dr. Anupama Sethi and Dr. Akhil Saxena have been found to be negligent in their care provided to late Mrs. Anita and the ethics committee recommended for removal of their names from the Indian Medical Register/concerned State medical Register, for a period of one month". Hence, complainant filed this complaint and prayed for a total compensation of Rs. 6,30,60,000 under different heads as follows:

ON mere perusal of the Prayer supra, we are of view that, Serial Nos. 1 to 4 and 16 are somewhat relevant. The remaining quantum of compensation appears to be just hypothetical and illusionary. We do not see any justification in such prayer. At most, the Complainant incurred expenditure of around Rs. 2 -3 lakh, but is seeking hefty compensation. It is the discretion of Courts to allow or disallow the compensation in such cases, if the Complainant succeeds.

NO doubt, the ethics committee of Medical Council of India recommended for removal of names of Dr. Anupama Sethi and Dr. Akhil Saxena from the Indian Medical Register or from the concerned State Medical Register for a period of one month. In our opinion, the MCI has not commented anything about the negligence in the treatment of the wife of the Complainant. The Consumer Courts are not bound accept the findings of MCI, in totality. In this case, to establish a claim of medical negligence against OPs, this Commission needs voluminous evidence from each of the Opposite Parties, also needs to examine several medical literatures and expert evidence. Further, we have noted from the order sheet that this complaint was filed long back, on 27.12.2012, already 1 year 7 months are elapsed, complainant sought several adjournments on flimsy grounds. It is clear from order sheet that, there is no co -ordeal relation between the Counsel and the Complainant, a mere delaying tactics at the admission stage. It is the sheer wastage of precious time of this Commission, during the admission hearing.

WE have given opportunity to the Complainant to amend the complaint with proper justification, but still, the claim is a highly inflated one. The Consumer Courts are not a Lottery Centre or game of Russian roulette. We have considered the complainant''s case thoroughly. He is claiming Rs. 6,30,60,000, as compensation. We have relied upon various authorities of Hon''ble Supreme Court. In a recent authority Pesi Dady Shroff v. Boehringer Ingetheim Denmark & Anr., Civil Appeal No. 9453 of 2013, filed against this Commission''s judgment and order passed in Consumer Complaint No. 164, dated 10.7.2013, the Hon''ble Supreme Court was pleased to make the following observations: "Leaving the question of law open, as to whether in such a fact situation, provisions of Consumer Protection Act, 1986, are applicable, it is open to the appellant to approach the Civil Court for the simple reason that for the purchase price of Rs. 4 -5 lakh in 2003, he has claimed a sum of Rs. 73.35 crores. Such a claim can be adjudicated only after the assessment of evidence, etc., before the Civil Court and, therefore, it is a fit case where, even if the Consumer Protection Act, 1986, is applicable, the appellant must approach the Civil Court for appropriate relief.

With these observations, the civil appeal is disposed of."

In Synco Industries v. State Bank of Bikaner & Jaipur and Others, : I (2002) SLT 214 : I (2002) CPJ 16 (SC) : (2002) 2 SCC 1, the Hon''ble Apex Court has held as under:

"3. Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakh for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the civil Court. This is an appropriate claim for a civil Court to decide and, obviously, was not filed before a civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay the Court fees. This, in that sense, is an abuse of the process of the Consumer Forum."

ALSO , this Commission has decided recently a Consumer Complaint No. 76 of 2014 on 16.5.2014, in Kumari Sangita Tukaramji Rokde v. Union of India and Ors., : III (2014) CPJ 398 (NC), the Complainant prayed for compensation of Rupees five hundred crore, wherein Hon''ble Mr. Justice J.M. Malik has made following observations: "For the meagre sum of about Rs. 500, she is claiming Rs. 5.00 crore, as compensation. This Commission, under the Consumer Protection Act, 1986, is a summary Court. The examination of witnesses and their cross -examination is not permissible as such. She has lodged report with the CBI. The offence of bribe is yet to be proved. This Commission under the Consumer Protection Act, 1986, does not deal with the cases of bribery and fraud. These entail a lot of evidence and proper investigation. The offence must stand proved in accordance with law. Although, the pleadings are quite impressive, yet, the facts are yet to be discussed down the ground. The Consumer Fora cannot arrogate to itself the powers of a CBI Court or a Court under the provisions of Prevention of Corruption Act, 1988. It is too early to give our piece at this stage in absence of solid and unflappable evidence. All these allegations cannot be proved through mere affidavits or interrogatories. It is pertinent to know that cross -examination of the witnesses is the life/blood of our legal system. It is the only way, a Judge can decide whom to trust and an answer, during cross -examination, may wreck one''s case. It is painfully apparent that it is impossible to gauge the real issue. This Commission is unable to winnow truth from falsehood. This Commission can go into the subject, only skin deep. It cannot be said at this stage, at which way the wind will blow."

In view of the above discussion and rulings, we, therefore, dismiss this complaint, in the interest of justice we, refrain ourselves from imposing any punitive costs on the complainant. The observation touching the merits of this case is tentative only for the purpose of this complaint and shall not be construed as an expression of final opinion in the matter. We grant liberty to the Complainant to approach Civil Court or proper Forum, where the pecuniary jurisdiction lies. Complainant can seek help for limitation, laid down in Laxmi Engineering Works v. P.S.G. Industrial Institute, : II (1995) CPJ 1 (SC) : II (1995) CLT 474 (SC) : (1995) 3 SCC 583. No order as to costs. Complaint dismissed.