SUNIL RUNGTA vs CHANDRASHEKHAR AGARWAL

DR. Sunil Rungta, who was the opposite party, in Complaint Case No. 69/1999 on the file of the District Forum, Ranchi is the appellant before us. He has challenged the judgment and order dated 13.8.2001 passed by the Forum, whereby the appellant has been directed to pay a sum of Rs. 50,000/- to the complainant. It was further held that the opposite parties are jointly and severally liable to pay the amount to the complainant within a period of two months from the date of order, failing which the opposite party will be liable to pay interest @ 12% per annum.

THE short facts giving rise to the disputes are that the complainant, Dr. Chandrasekhar Agarwal got his father, late Satyendra Prasad Agarwal admitted for his treatment of Melaena and Haematemesis in Nagarmal Modi Seva Sadan, Ranchi on 14.12.1998 about 8.30 p.m. THE condition of the patient was so serious that he was admitted and kept in intensive care unit, for short (I.C.U.) after having deposited the prescribed fee for treatment under the appellant, Dr. Sunil Rungta. THE Junior Doctor, who was on duty at that time, has informed the appellant of the serious condition of the patient on telephone at his residence. It is alleged that inspite of the repeated request, the appellant did not visit the Nursing Home. However, he has issued some directions on telephone to his junior. Two bottles of blood and saline were administered under the supervision of the said Junior Doctor, which lasted till the early morning. It is further alleged that Dr. Rungta, in course of routine visit to the I.C.U. at 10 a.m. on 15.12.1998 shifted the patient from 1.C.U. to Bed No. 213 and advised some pathological test. THE shifting of the patient from I.C.U. to the General Bed was objected by the complainant, who is himself a practising doctor. Further, the complainant deposited the prescribed fee for pathological test as directed by the appellant. Inspite of the amount having been deposited, staff of the Nursing Home did not collect the samples of the patient for the required test. Ultimately the complainant being himself a doctor collected the urine of the patient and produced the same for test but the staff of the pathological section refused to accept the urine collected by the complainant. It is alleged that the patient started vomitting blood. At the request of the complainant, the patient was again brought in I.C.U. THE complainant then made a request to the appellant Dr. Rungta to examine the patient, under whose treatment the patient was admitted in I.C.U. but unfortunately he did not examine the patient inspite of repeated request made by the complainant himself. Unfortunately the patient died on 15.12.1998 at about 5.40 p.m. THE complainant lodged the First Information Report at Kotwali P.S., which was registered as P.S. Case No. 668/1998 for an offence punishable under Section 304-A, I.P.C. It is alleged that the patient died due to utter negligence on the part of Dr. Rungta, the Incharge of pathological section as well as the management of Nagarmal Modi Seva Sadan, Ranchi and accordingly filed a complaint under the provision of the Consumer Protection Act (in short Act) claiming compensation of Rs. 3,50,000/-. Dr. Rungta, opposite party No. 1 appeared and filed show cause stating, inter alia, that on 14.12.1998 his Jr. Doctor has informed on telephone regarding the condition of the patient when the patient was admitted in I.C.U. under his treatment. It is stated that he had advised his junior regarding the line of treatment on telephone. It is alleged that he did not think it necessary to pay personal visit and examine the patient at the said I.C.U. However, it is alleged that he examined the patient on the following day at about 10 a.m. in the I.C.U. It is further alleged that he prescribed the line of treatment and also suggested some pathological test. It is also alleged that the patient was transferred from I.C.U. to Room No. 213 at the instance of the complainant himself. It is stated that the appellant has taken all care while the patient was in I.C.U. and there has been no negligence on his part in course of treatment of the patient. The incharge of pathological section of the Nursing Home Dr. Shailendra Dubey, opposite party No. 2 has filed his separate written statement wherein it is stated that the samples of urine brought by the complainant himself was not entertained, as the staff of the pathological section are alone competent to take samples brought by the unauthorised person namely the complainant and, as such, the samples could not be entertained. However, it is alleged that when the staff of the pathological section went to collect samples of Urine and Blood, the patient was found dead. Accordingly, it is stated that there has been no negligence on the part of the pathological section of the Nursing Home, Nagarmal Modi Sewa Sadan which was the opposite party No. 3 has however not filed its written statement.

On the pleadings of the party the learned District Forum has framed the following issues : (i) Whether the case as framed is maintainable ? (ii) Whether there has been deficiency in service on the part of all or any of the O.Ps. ? (iii) Whether the complainant is entitled to compensation and other relief, if any ?

ON consideration of the evidence on record the learned District Forum has decided the aforesaid issues against O.P. and in favour of the complainant and accordingly passed the impugned under directing the O.P. to pay the compensation as stated above. Learned Counsel appearing for the appellant has questioned the legality and validity of the order including the very initiation of the proceeding under the Act. It is submitted that the complainant has already filed criminal case on the same cause of action on 15.12.1998 being G.R. Case No. 3012 of 1998 which is pending before the Chief Judicial Magistrate, Ranchi. The complainant then filed the instant complaint petition sometime in the month of June, 1999. Accordingly, it is submitted that the learned District Forum should not have entertained the complaint petition and even after having entertained such petition the proceeding under the Act should have been stayed. According to the learned Counsel the proceedings under different statute for the same cause of action cannot be allowed to proceed simultaneously. In support of his contention learned Counsel has relied upon a decision in the case of Santosh Sharma & Ors. v State Bank of India & Ors., reported in Vol. II (1991) CPJ 262 (NC).

THE submission of the learned Counsel seems to be wholly misconceived and, as such, cannot be accepted for the reason that scope and ambit of the proceedings in two different statutes are entirely different. THE complaint under the Act is filed for grant of compensation and damages for defective supply of goods and/or deficiency in service on the part of the O.P. whereas the proceeding under the Code of Criminal Proceeding is initiated for awarding punishment to the wrong-doers. THE Criminal Court is not supposed to be compensated to the victims on account of the wrong done at the hands of the offenders. That apart the Act has been passed by the Parliament for giving instant relief to the victims who have been cheated by the unscrupulous traders/manufacturers and/or to the consumer who suffered loss due to deficiency in service on the part of the O.P. I am supported by a decision of the Apex Court in the case of Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370, wherein it has been held : "THEre are a large number of cases where criminal law and Civil Law can run side by side. THE two remedies are not mutually exclusive but clearly co-extensive and essentially differ in their content and consequence. THE object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong-doer in cases like arson, accident etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. THE two types of actions are quite different in content, scope and import. THE same view has been reiterated in the case of Alpic Finance Ltd. v. P. Sadasivam & Anr., reported in II (2001) SLT 202=(2001) 3 SCC 513, where the Supreme Court has held "if somebody suffers to injury to his personal property or reputation, he may have remedies both under civil and criminal Law. THE injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime". In that view of the matter, we are not inclined to accept the submission of the learned Counsel and hence it is rejected.

Now the question arises as to whether the patient died due to negligence on the part of the appellant under whose treatment, he was admitted in the I.C.U. As stated above the complainant who himself is practising doctor, brought his ailing father in the Nursing Home in a very precarious and deteriorating condition. The patient was admitted in the I.C.U. of the Nursing Home at 8.30 p.m. on 14.12.1998. The Junior Doctor who was on duty at that time has informed the appellant Dr. Rungta on telephone regarding the serious condition of the patient. The appellant instead of coming to the Nursing Home and examine the patient in the I.C.U. directed his junior to proceed on the line suggested by him. Admittedly he did not visit the I.C.U. to examine the patient inspite of the repeated request of his junior, as well as the complainant himself who is the practising doctor. Generally the patient is admitted in I.C.U. only in a serious case when it is expected from the medical fraternity to visit the I.C.U. and examine the patient personally. In the case in hand, admittedly the appellant did not examine the patient in spite of the repeated request made by his junior as well as the complainant who is himself a practising physician. In such cases it was incumbent upon the appellant to visit the I.C.U. personally and examine the patient but unfortunately he left the patient for whole night uncared. Only when he came to the routine visit on the following day in the hospital, he went to the I.C.U. and suggested some pathological test. Admittedly the staff of the pathological section did not collect the sample of urine and blood as a result the complainant himself took the sample of urine and went to the pathological section for the desired test. The staff of the pathological section did not accept the sample on the ground that the sample can be obtained only by the staff of the Nursing Home and none else. The admitted facts of the case go to show that the patient remained whole night in the I.C.U. uncared without any medical help as a result the patient died on the next day i.e. on 15.12.1998. Even on the next day when Dr. Rungta made a routine visit did not take any positive steps for treatment of the patient and ultimately when the staff of the pathology department came to collect the samples of urine and blood, he found the patient dead. As stated above, the complainant himself made a request to Dr. Rungta to examine the patient in the I.C.U. on 14.12.1998 itself. It was bounden duty of Dr. Rungta to visit the I.C.U. and examine the patient personally but for the reasons best known to him, he did not care to examine the patient whose condition was deteriorating from minute to minute. This clearly goes to show the utter negligence on the part of the appellant. It is expected that in such serious cases the attending physician must discharge his duty honestly and take care of the ailing patient. No fast rules can be laid down regarding the degree of care and negligence on the part of the attending physician which depends upon the facts and nature of the ailment of a particular patient. In the case in hand as stated above, the patient was immediately brought to the Nursing Home having regard to his precarious condition and the patient was admitted in I.C.U. under the treatment of Dr. Rungta. The patient was brought for treatment of Melaena and Haematemesis, in other words, the patient was passing blood through vomitting as well as stool. In such cases, the Davidson''s Principles and Practice of Medicine envisage that the patient in such condition when admitted must be assessed by both the physician as well as the Surgeon. A relevant passage from the aforesaid Davidson''s principles and practice of medicine may be quoted which reads thus : "On admission there should be joint assessment by the physician and surgeon and in large centres the management of gastroduodenal bleeding can with advantage be centralised in a single unit. The diagnosis and bleeding status should be established at the outset. Urgent endoscopy is necessary to show the source of the bleeding whether it is continuing or whether it is likely to recur. The bleeding status is ascertained by passage of a nasogastric tube which should be aspirated at half hourly intervals and the quantity and type of aspirate recorded. Whole blood should be given as soon as it is available; until then, a colloidal solution such as dextran can be used. Transfusion must keep pace with the estimated loss."

It further envisages that in such cases emergency surgery should be advised in a patient over the age of fifty in case of recurrent bleeding. Admittedly in this case neither endoscopy has been suggested nor the surgeon has been consulted by the appellant Dr. Rungta. In such case Dr. Rungta should have suggested for Endoscopy to find out as to where from the blood is coming out. According to the complainant the patient was admitted at 8.30 p.m. on 14.12.1998 whereas according to the O.P. the patient was admitted in Nagarmal Modi Seva Sadan at 10 p.m. Admittedly when the patient was admitted in I.C.U. the Jr. Doctor who was on duty informed Dr. Rungta regarding the detoriating condition of the patient but instead of coming personally to examine the patient, he as alleged has issued necessary directions to the junior. The routine visit of Dr. Rungta on the Nursing Home on the following day at 10 a.m. goes to show that the patient was left uncared resulting the death of the patient for which the appellant Dr. Rungta along with the staff of the Nagarmal Modi Seva Sadan are responsible. It is true that sometimes the instructions are issued by the Doctor to his juniors suggesting the line of treatment but the case in hand was so serious, it was incumbent upon Dr. Rungta under whose unit a patient was admitted to visit personally and examine the patient. The show cause filed on behalf of Dr. Rungta shows that the patient was in serious condition, when he was brought to the Nursing Home. It is really unfortunate that inspite of knowledge of the serious condition of the patient and inspite of the repeated request having been made by the junior including the complainant, the appellant Dr. Rungta did not think it proper to come and examine the patient in the I.C.U. which clearly goes to show the deficiency in service and as well as utter negligence on the part of the appellant in treating such serious patient. I fail to understand as to why Dr. Rungta thought it fit not to visit I.C.U. personally inspite of repeated request by his junior and the complainant himself. It has come on record that Endoscopy was suggested but this cannot be accepted on the ground that no fees of Endoscopy has been charged from the complainant and it can safely be presumed that had the Endoscopy been suggested the complainant himself being a Doctor would have certainly deposited the fees for Endoscopy test. In that view of the matter the submission that the Endoscopy was suggested cannot be accepted on the face of the record. As stated above, in such cases the consultation with the Surgeon is a must, the appellant Dr. Rungta is a competent physician and must be knowing the line of treatment what is required in such cases. Even then he did not consult the surgeons. In course of arguments, it has been suggested that because of some enmity between the complainant and the appellant Dr. Rungta, the proper care has not been taken by the appellant. However, there is nothing on record to accept such submission. Even assuming for the movement that there has been difference between the complainant and Dr. Rungta, it cannot be expected from a physician that because of such differences, the patient could be neglected.

IT was the duty of Dr. Rungta to advise Endoscopy test and further to consult the surgeons but for the reasons best known to him, he neither suggested the Endoscopy test nor consulted the surgeons. Admittedly the charge for urine and blood test was realised and paid by the complainant for pathology test on 15.12.1998 but no fee for Endoscopy test was realised. This clearly suggested that the Endoscopy was never suggested by the appellant Dr. Rungta. IT is however submitted on behalf of the appellant that Endoscopy test was not conducted since Dr. P.K. Choudhary Incharge of Endoscopy advised him not to conduct Endoscopy test firstly on the ground that the patient was not in empty stomach and secondly he had taken antacid. In support of his contention, learned Counsel had referred to the text book of practical gastro intestinal Endoscopy by Cotton and Williams wherein it has been suggested that for conducting Endoscopy test, the patient must be in empty stomach and must not eat/or drink anything after midnight and must not take any antacid. In the case in hand, it is admitted position that for the whole night on 14.12.1998 the appellant Doctor did not visit the I.C.U. Prescription dated 14.12.1998 goes to show that sorbacid gel two tea spoonful was suggested and on 15.12.1998 the patient was advised to take cold diet semi solid and liquid which goes to show that the aforesaid medicine was prescribed on telephone which was administered to the patient. As stated above in such ailment the Endoscopy test is a must for the patient. The appellant should not have allowed the patient to eat and drink even cold and liquid diet. IT further appears that although the complainant deposited the prescribed fee for pathology test of urine, blood, etc. on 15.12.1998 but unfortunately none of the test has been conducted by the Incharge of the pathology section on the ground that when the staff of the pathology section wanted to collect the sample, he found the patient dead. The patient admittedly died on 15.12.1998 at 5.40 p.m. which is apparent from the treatment chart including the death certificate granted by the O.P. No. 3. On 14.12.1998 itself the aforesaid pathology test was prescribed and, as such, it can safely be presumed that the charges of such test must have been realised and deposited by the complainant on 14.12.1998 or in the early hour of the following day. In the rejoinder it has been stated by the complainant that the charge for pathology test was deposited on 14.12.1998 which is apparent from the cash memo issued by the O.P. No. 3 showing the receipt of the charges for the pathology test. In that event it can safely be held that utter negligence and laches on the part of the staff of the pathology section who admittedly did not collect the sample till 5 p.m. IT may be mentioned here that the appellant as well as the Incharge of the pathology department are in the pay roll of the O.P. No. 3 namely Nagarmal Modi Seva Sadan. Having regarding to the facts and the circumstances set forth above we are of the view that there has been a gross negligence on the part of the appellant as well as the incharge of the pathology section in treatment of such a serious case which ultimately resulted the death of the patient. Having regard to the fact that the charges realised for the test of the urine, blood etc. goes to show that O.P. 3 namely Nagarmal Modi Seva Sadan is equally liable along with the appellant and the incharge of the pathology section due to negligence and laches on their part in the treatment of the patient.

AFTER having taken into consideration the age of the patient as well as the facts and circumstances, the learned District Forum has awarded a compensation of Rs. 50,000/- only to the complainant. The decisions relied upon by the learned Counsel for the appellant do not help him in the facts and circumstances of this particular case. Hence, it is not necessary for me to deal with the judgment in detail. I have heard the learned Counsel for the parties, considered the materials on record including the judgment under challenge, I do not find any infirmity and/or illegality in the order impugned, accordingly this appeal is dismissed with cost assessed at Rs. 5,000/- (Rupees five thousand) only. Let a copy of this order be sent to the parties concerned free of cost as envisaged under the rules and/or hand over the same to their respective lawyers, so that the order must be complied with within four weeks therefrom. Appeal dismissed.