SADRUDEEN HUSENBHAI KACHCHI & ORS. vs NEW INDIA ASSURANCE CO. LTD. & ANR

This Revision Petition by the Complainants is directed against order, dated 12.11.2009 passed by the State Consumer Disputes Redressal Commission, Gujarat at Ahmedabad (for short "the State Commission") in First Appeal no.505 of 2006. By the impugned order, the State Commission has reversed the order, dated 15.04.2006, passed by the District Consumer Disputes Redressal Forum, Junagadh (for short "the District Forum") in Complaint no.39 of 1996, whereby the Respondent Insurance Company and the treating Doctor were directed to pay to the Complainants a sum of Rs.2 Lac alongwith interest @ 9% p.a. and costs of Rs.5,000/- for negligence on the part of Respondent no.2 in treating late Smt. Gulshan Ben.

It was alleged in the Complaint that because of administration of a Penicillin injection to the deceased on 20.04.1995 for cough and cold, she had lost her life. On evaluation of the evidence, the District Forum had

come to the conclusion that the treating Doctor had not taken due precaution while administering Penicillin injection to the deceased for ordinary sickness, cough and bronchitis. Accordingly, the Complaint was allowed with the aforenoted directions.

Being aggrieved, the Insurance Company as well as the treating Doctor took the matter in Appeal before the State Commission. The State Commission, placing reliance on the decision of the Supreme court in MARTIN F. D''SOUZA VS. MOHD. ISHFAQ, (2009) 3 (SCC) 1, has come to the conclusion that the conduct of the treating Doctor was not below the standard of a reasonably competent practitioner and, therefore, he could not be held liable for negligence in treating the deceased, observing thus: "3.3 In the present appeal the main issue is whether there is any deficiency on the part of the doctor. More particularly while administering the injection of penicillin to the deceased. It is true that in normal case patient who suffering from cough and cold, doctors does not administer penicillin. But it is the discretion of the doctor which type of treatment to be given to the patient. In the present case Dr. Nanavati administered short quantity of penicillin injection to the deceased to test whether she has any reaction or not. The patient immediately reacted and doctor has also given another injection and medicine to save the life of the

patient. Therefore, we are of the opinion that doctor has tried to save the life of the patient in all ways and means but she died. So, in our opinion there is no deficiency on the part of the doctor.

Being dissatisfied with the said decision, the Complainants are before us.

Having heard learned Counsel for the parties, we are of the view that the impugned order is unsustainable on the short ground that it does not show any application of mind on the part of the State Commission on the material, which was referred to and relied upon by the District Forum while returning the finding of medical negligence against the treating Doctor.

It is trite that an Authority making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. It has been emphasized in a catena of decisions of the Hon''ble Supreme Court that every quasi-judicial order must be supported by reasons.

In Charan Singh vs. Healing Touch Hospital & Ors. , (2000) 7 SCC 668, dealing with a grievance under the Consumer Protection Act, 1986 a three judge Bench of the Supreme Court observed as follows: "11. The Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons. Unfortunately we have not been able to find from the impugned order any reasons in support of the conclusion that the claim of the appellant is "unrealistic" or "exaggerated" or "excessive". Loss of salary is not the sole factor which was required to be taken into consideration."

In the present case, it is manifest that in the impugned order, the State Commission has not indicated as to whether the Penicillin injection was given to the deceased as a test dose or by way of regular treatment and what kind of injection was administered to her as an anti dote to the said injection. We may note that for judging the standard of care by the Doctor, the State Commission also eared in placing reliance on the decision of the Supreme Court in D''souza''s case (supra), as the same has not been approved by the Supreme Court in its subsequent decision in V. Kishran Rao vs. Nikhil Super Specialty Hospital & Anr., (2010) 5 SCC 513. We also find that the medical prescription was not placed before the State Commission.

For the aforegoing reasons, we allow the Revision Petition; set aside the impugned order and remand the case back to the State Commission for deciding the Appeal by passing a reasoned order, keeping in view the observations made above. The Revision Petition stands disposed of with no order as to costs.

Parties/their Counsel are directed to appear before the State Commission on 29.05.2015 for further proceedings.

As the Complaint was filed as far back as in the year 1996, we request the State Commission to dispose of the Appeal as expeditiously as possible.