RANJNA BHARDWAJ vs Rekha Rani

THESE are two cross appeals bearing Nos. 314 and 324 both of 2003 filed by the complainant Smt. Rekha Rani and the O.P. Dr. (Mrs.) Ranjana Bhardwaj wife of late Dr. Rajesh Bhardwaj against order dated 1.4.2003 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum] in Complaint Case No. 575 of 1999. The complainant Smt. Rekha Rani in her appeal seeks modification of the impugned order of the District Forum and prays for enhancement of compensation awarded by the District Forum. The O.P. Dr. (Mrs.) Ranjana Bhardwaj, on the other hand, challenged the impugned order and prays for setting aside of the impugned order and dismissal of the complaint case. Since the two appeals arise out of one and the same judgment, they are being disposed of by this common order, which is being passed in Appeal No. 324 of 2003. The main appeal, which challenges the impugned order, is the appeal filed by Dr. (Mrs.) Ranjna Bhardwaj. We proceed to examine the appeal filed by OP No. 2 - Dr. (Mrs.) Ranjna Bhardwaj.

THE complaint was filed in the District Forum by Smt. Rekha Rani wife of Shri Pradeep Kumar resident of Quarter No. 107, Army Flats, Mansa Devi Complex, Panchkula in the State of Haryana in which she impleaded Dr. Rajesh Bhardwaj and the present appellant Dr. (Mrs.) Ranjna Bhardwaj. THE complainant was on family way having gone two months in pregnancy when she had acute pain. THE complainant was taken by her husband Shri Pradeep Kumar to Bhardwaj Clinic at Pipliwala Town, Manimajra which was being run by Dr. Rajesh Bhardwaj and Dr. (Mrs.) Ranjna Bhardwaj. THE complainant was examined on 13.3.1999 at the clinic aforesaid and the OPs advised the complainant that as she was having excessive pain due to abnormality in the preganancy, hence she should undergo medical termination of pregnancy (for short hereinafter to be referred as MTP). THE consent of the complainant and her husband having been taken, the complainant was called on 14.3.1999 by the O.Ps. in their clinic where a sum of Rs. 1,000/- was demanded towards the fee which was paid but no receipt was issued for the same. THE abortion was carried out by the OPs who prescribed some medicines and the complainant was asked to go home. THE prescription slip Annexure ''A'' is dated 14.3.1999. That very day in the night around 10.00 p.m., the complainant developed pain in her stomach again. THE husband of the complainant approached the O.Ps. on 15.3.1999 in the morning at their residence and the O.Ps. checked the complainant again and told her husband and father-in-law as there was nothing to worry about, as the complainant would be all right within 2-3 days. THE prescription of medicines was slightly also changed and the changed prescription was annexed as Annexure ''B''. The O.Ps. advised the complainant to take rest and medicines as prescribed to her. After taking medicines, the complainant felt some relief but she was still not quite well as she felt pain in her stomach. The pain became severe in the evening of 19.3.1999 when her husband immediately contacted the O.Ps. and apprise them about her condition. The O.P., however, flatly refused to accompany her husband and told that their job was only to carry out the operation and further told that they are not responsible for any further complication. The parents-in-law of the complainant immediately called a specialist in the gynaecology residing in the nearby house and running her clinic in Panchkula who checked the complainant and gave injection and painkiller and advised her father-in-law and her husband to bring the complainant to her clinic in the morning. The prescription slip was annexed as Annexure ''C''. The complainant was taken up by the husband and father-in-law to the said clinic on 20.3.1999, where she was examined by the doctor and kept under observation and advised for ultra sound which was got done in Sector 4, Panchkula on 21.3.1999 vide report Annexure ''D''. The report of ultra sound was perused by the doctor who told the complainant that some cotton swabs and some small part of pregnancy had been left in the uterus at the time of conducting the M.T.P. The cotton and pieces of pregnancy were removed from the uterus and then she felt relief. Some more blood and urine tests were got done and medicines were provided to the complainant. The complainant, however, did not feel much relief and again she contacted the lady doctor who told her that some infection had been caused in the uterus for 5-6 days. The condition, however, did not improve and rather deteriorated when the complainant approached the Government Medical College and Hospital, Sector 32, Chandigarh [for short hereinafter to be referred as GMCH] on 26.3.1999. In the morning, she was admitted in the emergency. Various tests were conducted and operation was performed by the team of doctors the same day, she was sent to septic ward.

The complainant alleged that the OPs were guilty of medical negligence, deficiency in service and carelessness in wrongly suggesting for operation and then conducted the operation negligently and leave cotton swabs and pieces of pregnancy in uterus, which caused infection. The complainant spent a huge amount on treatment and suffered pain, mental tension and agony. She remained admitted in the GMCH from 26.8.1999 to 5.4.1999, 8.4.1999 to 16.4.1999 and from 3.5.1999 to 17.5.1999 and spent a sum of Rs. 70,000/- on medicines, treatment and other expenses. She claimed a sum of Rs. 2 lacs as compensation on account of pain and suffering and a sum of Rs. 70,000/- which she had spent on treatment. She also claimed a sum of Rs. 30,000/- for future expenses to be incurred on treatment and for loss of business of her husband. A legal notice was served on the OPs and the complaint was filed on 2.7.1999.

NOTICES were issued to the OPs who filed joint written statement denying the allegation that the O.Ps. suggested to the complainant to undergo operation and that the O.Ps. performed the operation. The O.Ps., however, admitted that the complainant had come to the clinic on 14.3.1999 after already having undergone operation at the hands of other medical practitioner on 13.3.1999 for a check-up and medicines as she had been experiencing abdominal pain and vaginal bleeding. The O.P. No. 1 asked the complainant to produce the slip of the doctor who had performed the operation and he was told that she did not possess any slip of the doctor who has performed the operation and he was told that she did not possess any slip. The O.P. No. 1 after hearing the case history prescribed medicines to reduce the pain and bleedings vide Annexure ''A'' and she paid fees of Rs. 50/- as consultation charges. On 15.3.1999, O.P. No. 1 visited the complainant at her residence and after examination, prescribed medicines as per Annexure ''B''. The complainant was suffering from pelvic inflammatory disease caused due to incomplete abortion performed elsewhere. Patient was also advised rest and undergoing ultra sound and to inform the OP thereafter but O.P. was never again contacted. After 15.3.1999, the complainant never contacted the O.Ps. nor did the husband of the complainant contacted the O.Ps. It was alleged that the complainant has made the O.Ps. the scape goat for an act which was not done by the O.Ps. It was contended that the O.P. No. 2 never came in contact with the complainant. She did not examine the patient nor did she prescribe any medicine for the complainant. It was only Dr. Rajesh Bhardwaj who prescribed the medicines and who was consulted by the complainant. The other allegations were denied. The amount spent by the complainant was also denied. The receipt of legal notice was, however, admitted but it was alleged that the husband of the complainant rang up the OP No. 1 and threatened him to pay Rs. 2 lacs. Smt. Rekha Rani filed her affidavit in support of the complaint case and filed photocopies of the slips of medicines purchased from the shop of medicine and receipts issued from GMCH and the prescriptions slips issued by the O.P. No. 1. The OP No. 1 filed her separate affidavit in which she categorically denied having treated the complainant or about her having ever consulted by the complainant.

DURING the pendency of the complaint case, Dr. Rajesh Bhardwaj (O.P. No. 1) died and in her place, O.P. No. 2 - Dr. (Mrs.) Ranjna Bhardwaj was sought to be impleaded. The OP No. 2 was already on record and she filed her reply admitting that Dr. Rajesh Bhardwaj had expired and she was the wife of the deceased but in the present case, she could not be impleaded as Legal Representative of the deceased O.P. No. 1 as the case related to the alleged medical negligence on the part of O.P. No. 1. She reiterated her earlier version that she was never consulted by the complainant and she never examined and treated the complainant. The prescription slips issued to the complainant are in the signatures of her deceased husband Dr. Rajesh Bhardwaj. Annexures A and B were filed in original showing that they were issued by Bhardwaj Clinic and according to the OPs, these prescription contained the signatures of O.P. No. 1. The District Forum allowed the complaint and held O.P. No. 2 liable jointly and severally and co-extensive with her husband and awarded compensation of a sum of Rs. 40,000/-, which was directed to be paid within two months from the date of receipt of copy of the order failing which the said amount shall carry interest @ 9% per annum. The notices of both the appeals were issued and served on the respondents who put in appearance through Counsel. The record of the complaint case was summoned from the District Forum. We have heard the learned Counsel Mr. Pankaj Chandgothia, Advocate for the appellant - Dr. (Mrs.) Ranjna Bhardwaj & Anr. in Appeal No. 324 of 2003 and respondents in Appeal No. 314 of 2003 and the learned Counsel Mr. Naresh Kaushal, Advocate for the appellant, Smt. Rekha Rani in Appeal No. 314 of 2003 and respondent in Appeal No. 324 of 2003. We have perused the impugned order and the record of the case.

THE case of the appellant - Dr. (Mrs.) Ranjna Bhardwaj right from the very beginning has been that she was never consulted by the complainant and she never treated her nor did she issue any prescription to her. She filed her affidavit and was not cross-examined with reference to her affidavit on behalf of the complainant. THE complainant has also not specifically and clearly deposed either in the complaint or in her affidavit that she had been examined and treated by Dr. (Mrs.) Ranjna Bhardwaj. Dr. (Mrs.) Ranjna Bhardwaj has been fastened liability by the District Forum as the wife and legal representative of the deceased O.P. - Dr. Rajesh Bhardwaj who admittedly examined and treated the complainant though not for operation but for subsequent complications arising out of operation which was allegedly got done at some other place which was not known to the O.Ps. It may be pointed out that the services of O.P. No. 1 were hired and availed by the complainant as a medical practitioner which was the personal act of OP No. 1 and the same could not be held to be a right or estate which would be succeeded on his death by his heirs and legal representatives/wife Dr. (Mrs.) Ranjna Bhardwaj. THE case insofar as OP No. 1 is concerned, would be squarely covered by the maxim "actio personalis moritur cum persona" i.e. the personal action dies with the death of the person.

THE Hon''ble National Consumer Disputes Redressal Commission, New Delhi [for short hereinafter referred to as the NCDRC] examined this aspect of the matter in the case of Balbir Singh Makol v. Chairman, M/s. Sir Ganga Ram Hospital and Ors., I (2001) CPJ 45 (NC)=2001 (1) CPC 429 and referred to the judgment of the Hon''ble Supreme Court in the case of G. Jayaprakash v. THE State of Andhra Pradesh, AIR 1977 Andhra Pradesh 20 (22), wherein the Hon''ble Apex Court held, inter alia, as under : "THE death of the doctor extinguished his liability for damages and the suit against him stood abated. THE maxim, "actio personalis moritur cum persona" applied to the case. In the 8th Edition of Winfield on Tort at page 740 the following passage occurs: In case of a lawful surgical operation in general negatives the liability. But in a case where actionable negligence is committed by the doctor, which amounts to a personal wrong done by him, he may be liable for damages. But his death extinguishes his liability in tort and the right to sue also gets extinguished....."

In para 13, the Hon''ble NCDRC referred to the observations of the Hon''ble Supreme Court in the case of Melepurath Sankunni Ezhthassan v. Thekitti Geopalakutty Nair, AIR 1986 Supreme Court 411. It was a case where the suit of declaration has been dismissed and the complainant had filed an appeal. During the pendency of the appeal, the defendant had died the Hon''ble Supreme Court held that his legal representatives could not be brought on record as the cause of action stood extinguished. After citing the aforesaid decision of the Hon''ble Supreme Court, it was held in para 14 that the Commission had no option but to hold that the present complaint cannot proceed any further against Dr. Makhani who had expired on 11.11.1999. The proceedings before the Hon''ble NCDRC could no longer survive and were terminated as right to issue did not survive against the legal representatives of late Dr. Makhani aforesaid.

The act of OP No. 1 Dr. Rajesh Bhardwaj which is complied of by the complainant was personal act of the OP No. 1 of alleged medical negligence which could not be passed on to his heirs and legal representatives. Thereafter, the District Forum went wrong in allowing substitution in place of the deceased OP Dr. Rajesh Bhardwaj and bringing on record Dr. Ranjna Bhardwaj as his legal heir. As mentioned above, the complainant has miserably failed to show that Dr. Ranjna Bhardwaj had ever treated the complainant and committed any act of medical negligence or was in any way careless or deficient in rendering service as no service of Dr. Ranjna Bhardwaj was ever hired or availed of by the complainant. Dr. Ranjna Bhardwaj could not be fastened liability as the heir and legal representative of her deceased husband Dr. Rajesh Bhardwaj.

RESULTANTLY, the appeal filed by Dr. Ranjna Bhardwaj being Appeal No. 324 of 2003 succeeds and is allowed. The impugned order of the District Forum is set aside and the complaint is dismissed against Dr. Ranjna Bhardwaj who is the sole surviving OP in the complaint case. Since the complaint has been dismissed, the appeal filed by the complainant being Appeal No. 314 of 2003 for enhancement of the compensation is consequently dismissed. In the peculiar circumstances of the case, the parties are left to bear their own costs of appeals. Copies of this judgment be sent to the parties free of charge. Appeal 324/2003 allowed. Appeal 314/2003 dismissed.