w w w . L a w y e r S e r v i c e s . i n

Parag Girishchandra Desai & Another v/s Dr. Ashokbhai C. Shah & Another

Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- PARAG INDIA LTD [Strike Off] CIN = U51109WB1983PLC036339

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- DESAI R AND C PRIVATE LIMITED [Strike Off] CIN = U74140GJ2000PTC037395

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- DESAI (INDIA) PRIVATE LIMITED [Strike Off] CIN = U63090MH1960PTC011789

Company & Directors' Information:- G. DESAI AND COMPANY LIMITED [Dissolved] CIN = U99999MH1947PLC005965

Company & Directors' Information:- SHAH AND DESAI AND CO. LTD. [Dissolved] CIN = U99999MH1948PLC006419

Company & Directors' Information:- DESAI LTD. [Dissolved] CIN = U99999MH1948PLC006433

Company & Directors' Information:- DESAI AND COMPANY LIMITED [Dissolved] CIN = U99999MH1949PLC007486

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    First Appeal Nos. 293 & 425 of 2012 in Complaint No. 92 of 2001

    Decided On, 14 May 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Appellants: Dhaval M. Soni, Advocate. For the Respondents: Jyoti Nagpal, Advocate.

Judgment Text

M. Shreesha, Member

1. Aggrieved by the order dated 18.4.2012 in Consumer Complaint No. 92 of 2001, passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (in short “the State Commission”), the Complainants and New India Assurance Co. Ltd. have preferred these First Appeal Nos. 293 and 425 of 2012, respectively, under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has allowed the Complaint in part directing the Opposite Parties to pay compensation of 3,00,000 together with interest @ 9% p.a. from the date of filing of the Complaint till the date of realization and cost of 5,000.

2. The facts in brief, are that late Sheetalben Desai (hereinafter referred to as ‘the Patient’), the first Complainant’s wife and the second Complainant’s mother consulted her family physician Dr. Joshi on 2.8.2000 with a complaint of fever. She was advised blood tests, which were carried out on 3.8.2000, and the reports of which were shown to Dr. Joshi, who prescribed some medicines, but there was no relief from fever. On 8.8.2000, Dr. Joshi referred her to the first Opposite Party Dr. Ashokbhai C Shah (hereinafter referred to as ‘the treating Doctor’) with a reference note. Some more investigative tests, like CBC, ESR, Urine examination and Widal test were recommended, the reports of which were shown to the treating Doctor, who prescribed some medicines and stated that the Patient is Cipro-sensitive. The Patient was also informed that the Widal test was negative. It is averred that as advised by the treating Doctor, the Patient was regularly taking her medication, but even as on 12.8.2000, the fever did not subside and she consulted the treating Doctor once again, who insisted that she come again on 14.8.2000. On 14.8.2000, on which date she was advised hospitalisation. It is pleaded that at around 12 noon saline and administration of injections were started, subsequent to which, the Patient suffered extraordinary sweating all over the body. The Patient started vomiting, but the treating Doctor examined her after two hours and took fresh blood samples. After four to five hours the Patient felt unbearable pain in her abdomen and the treating Doctor informed the Complainants at 8.30 p.m. that the situation was under control.

3. She was shifted to a special room on 15.8.2000, Dr. Dhiren Sheth (MS) consulted, who advised Sonography which was carried out by Dr. Hiren Doshi and the blood tests were carried out in two to three different laboratories, after which the doctor expressed his disagreement for operation. Thereafter, Dr. Ashwin Patel, Haematologist was consulted for kidney and blood problems. On 16.8.2000, it was decided to shift the Patient to Dr. Jivraj Mehta Hospital and the Complainants were informed that the Patient’s kidney was damaged. She was kept in the ICU at this Hospital for two days and thereafter, expired on 18.8.2000.

4. It is pleaded that the Patient was only 28 years old, when she expired and was a teacher earning 2,000 per month and that the first Complainant had lost his wife and the second Complainant the motherly love and affection, only on account of the negligence of the treating Doctor, who failed to diagnose the reason for the fever and did not exhibit due care and caution in treating the Patient. Hence, the Complainants approached the State Commission seeking the following reliefs:

(a)An order may please be passed that, respondent should pay Rs. 18,86,000 to the Complainants, against damage compensation for gross negligence in his service.

(b)Any other relief which Hon’ble Court may deem fit, just and proper may please be ordered in favour of the Complainants.

(c)Cost of this Complaint Rs. 10,000 may please be ordered in favour of complainant.

5. The treating Doctor in his defence, stated that the Patient had been referred to him by Dr. Joshi on 8.8.2000 and based on the diagnostic tests namely, Widal test, urine CBS and ESR the Patient was diagnosed to not be suffering from typhoid and medicines were prescribed for five days. It is averred by the treating Doctor that on 12.8.2000 the Patient telephonically informed him that low grade fever was persisting. On 13.8.2000 the Patient informed him telephonically that she was feeling very week; that on 14.8.2000 the Patient and her mother-in-law had visited him and complained that she was having pain in the abdomen and was unable to take any food; that when he examined her, he found that she was suffering from fever though her Blood Pressure was normal; investigations were repeated and glucose was started and injection Dicloran 2 ml was administered; he was informed that the Patient was vomiting and therefore he had instructed to stop the tablet; at about 2 p.m. he was informed that the Patient had sweating and that she was having pain in the abdomen on the left side; though BP was normal her pulse was very high and the Cardiogram did not show any abnormality with respect to the heart. Because of stool passing and some physiological effect, the BP and pulses altered and she was kept under observation. It is further averred that he has examined the Patient at 6 p.m. and at 9 p.m. and before he had left for his residence he found that the pain in the abdomen was stable; on 15.8.2000 the abdomen was found slightly distended and sonography was advised by Dr. Hiren Doshi; the sonography did not reveal any sign of ectopic pregnancy or perforation; after shifting the Patient to Dr. Sheth’s Hospital and when reports of Dr. Verma were found normal, the treating Doctor visited Dr. Sheth’s Hospital at 10 p.m. and decided that surgery was not advisable. It is further pleaded that the Nephrologist and the Haematologist were called at Seth’s Hospital to take their advice. It is stated that the treatment rendered to the Patient from 14.8.2000 to 15.8.2000 before she was shifted to Dr. Sheth’s Hospital was in accordance with normal medical practice and that the treatment rendered at Jivram Mehta Hospital is not in his knowledge and if the Patient had expired on 18.8.2000, at that Hospital, he cannot be made liable.

6. The treating Doctor was insured under Error and Omission Policy with New India Assurance Co. Ltd. The Insurance Company filed their written objection, reiterating the stand of the treating Doctor and further averred that the Complaint was barred by limitation as the cause of action arose in the year 2000 and that the Complaint against the Insurance Company was filed in the year 2009.

7. The State Commission based on the evidence adduced, allowed the Complaint in part directing the treating Doctor and the Insurance Company jointly and severally to pay the Complainants an amount of 3,00,000 together with interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation together with costs of 5,000

8. It is pertinent to note that the treating Doctor did not prefer any Appeal. It is only the Insurance Company, which preferred Appeal No. 425 of 2012, on the ground that the State Commission has erred that there was any negligence on behalf of the treating Doctor. Learned Counsel appearing for the Insurance Company vehemently contended that the State Commission did not call for any medical expert opinion; that there was no medical literature filed to establish that the treating Doctor was negligent; that the State Commission ought to have dismissed the Complaint for non-joinder of necessary parties, namely, Dr. Dhiren Sheth and Jivram Mehta Hospital; that the ratio laid down by the Hon’ble Supreme Court in Jacob Mathew v. State of Punjab & Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=III (2005) CCR 9 (SC)=(2005) 6 SCC 1, that the Doctor cannot be held guilty of negligence if he had acted in normal medical parlance, was not considered by the State Commission; that the Patient was operated upon and expired at Jivram Mehta Hospital on 18.8.2000, four days after the discharge from the treating Doctor; that the Patient was treated for Septicaemia and that on 15.8.2000, when the Patient was at the Hospital of the treating Doctor there was no sign of Septicaemia and that the Blood Pressure of the Patient was normal and therefore no negligence can be attributed to the treating Doctor.

9. At the cost of repetition, the finding against the treating Doctor has attained finality as he did not choose to prefer any Appeal. Be that as it may the contention of the Insurance Company that the Complaint is barred by limitation because they were impleaded in the year 2009 is totally untenable in the light of the fact that the original Complaint with respect to medical negligence was pending and admittedly the Doctor was covered by the Error and Omission Policy issued by the Insurance Company and therefore we are of the considered view that the cause of action covered by the Policy was subsisting and hence it cannot be said to be barred by limitation.

10. Now, we address ourselves to the contention of the learned Counsel that the State Commission ought to have called for an Expert opinion. The Hon’ble Supreme Court in a catena of judgments has clearly laid down that Expert opinion is not mandatory and that the Consumer Fora can base on the facts and circumstances of each case and the evidence placed on record, adjudicate the matter and need not necessarily refer to an Expert. The contention of the learned Counsel that the Complaint is bad for non-joinder of necessary parties, namely, Dr. Dhiren Sheth and Jiveram Mehta Hospital is totally untenable as the point for consideration in the instant case is only whether there is any negligence per se on behalf of the treating Doctor. The fact remains that the Patient had Septicaemia and had expired three days subsequent to the treatment rendered by the treating Doctor.

11. We find it a fit case to place reliance on the principle laid down by the Hon’ble Supreme Court in Smt. Savita Garg v. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56, in which it has been observed that the onus shifts on the treating Doctor and the Hospital to explain as to the exact treatment rendered. In the instant case, it is an admitted fact that the Complainant had approached the treating Doctor at 11 a.m. on 8.8.2000; that she was being examined by the treating Doctor right through and was advised admission only on 14.8.2000. It is not in dispute that the Patient has continuous fever and was complaining of abdominal pain. The treating Doctor deposed that when he had examined the Patient she had no abdominal distention; that pancytopenia fever cannot be diagnosed immediately as it could be because of infection. It is significant to mention that the Doctor has admitted in his deposition that no culture report was carried out since the date the patient started treatment under him. Despite the Patient repeatedly going to the treating Doctor and several investigative tests were undertaken, no proper diagnosis was given by the treating Doctor, when the fever has not subsisted completely and the Patient was continuously complaining of abdominal pain, not even taking a culture report to review infection is per se negligence. He submitted that a nurse was monitoring the Patient. The treating Doctor had deposed before the State Commission that the Patient died because of Septicaemia, which occurred on account of infection. He further added that DIC is Widal in majority of cases and that he had seen the case paper of Dr. Jivram Mehta Hospital, wherein the treatment was rendered for the Septicaemia and DIC. When the Patient was treated for Septicaemia, which is admittedly caused on account of infection, and the Patient was under the treatment of the treating Doctor right from 8.8.2000 till 15.8.2000. It is for the treating Doctor to explain as to how the sepsis had set in.

12. Learned Counsel has rightly relied on the ratio of the judgment of the Hon’ble Supreme Court in Dr. S.K. Jhunjhunwala v. Mrs. Dhanwanti Kumari & Anr., II (2019) CPJ 41 (SC)=III (2019) SLT 465=(2019) 2 SCC 282, wherein the Hon’ble Apex Court has observed that negligence has to be decided on the touch stone whether the treating Doctor has adhered to the normal practice of medical parlance. Since the formulation of the Bolam test, English Courts have formulated a significantly nuanced doctrine pertaining to the standard of care. In Maynard v. West Midlands Regional Health Authority, (1985) 1 All ER 635 Lord Scarman held thus:

“A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances.”

13. In Hucks v. Cole, (1968) 118 New LJ 469, the Court of Appeal found the defendant guilty of medical negligence. Sachs LJ held thus:

“Where the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then however small the risk the Courts must anxiously examine that lacuna, particularly if the risk can be easily and inexpensively avoided. If the Court finds on an analysis of the reasons given for not taking those precautions that in the light of current professional knowledge there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact, and where necessary to state that it constitutes negligence.”

14. In the present case, we are of the considered view that duty of care which ought to have been taken was not taken and we completely concur with the finding of the State Commission.

15. The finding of medical negligence has attained finality as the treating Doctor did not prefer any Appeal. For all the aforentoed reasons the Appeal preferred by the Insurance Company i.e. First Appeal No. 425 of 2012 is dismissed with costs of 10,000 to be paid to the Complainants.

16. Now we address ourselves to the Appeal preferred by the Complainants i.e. First Appeal No. 293 of 2012 seeking enhancement.

17. The State Commission while awarding amount of 3,00,000 observed as follows:

“After above discussion, it is now to be decided that for what amount of compensation complainants are entitled? According to the case of the Complainants, deceased Sheetalben was working as a teacher (under training) at Samruti Vidyalaya Prathmik Shala and was earning Rs. 2,000 per month and was contributing in the family. To prove this, the complainants have produced on record a Xerox copy of certificate issued by the said school which is at page 24 of the main file. For the purpose of simple calculation the said amount may be taken as Rs. 2,100 per mont and 1/3rd therefor be deducted for she must have expended for herself (i.e. Rs. 700 ) and remaining 2/3rd (i.e. Rs. 1,400 ) can be considered as her contribution as her family and thus she was contributing Rs. 16,800 per annum. From the evidence available on record, Sheetalben was aged 28 years and therefore entitle to multiplier of 16 which comes to Rs. 2,68,000. The Complainants have not given details of expenses for the medicines and treatment in complaint but she was under treatment from 2.8.2000 to 18.8.2000 and was hospitalized on 14.8.2000 in the hospital of the opponent No. 1. She was transferred to Dr. Dhiren Sheth on 15.8.2000 and from there she was shifted to Dr. Jivraj Mehta Hospital where she expired during treatment on 18.8.2000. Considering that during the treatment, too many investi-gations were carried out and expert doctors were consulted the complainants are entitled to recover Rs. 30,000 for the expenses incurred for treatment and thus complainants are entitled to Rs. 2,98,800 rounded off to Rs. 3,00,000 towards compensation. The opponent No. 2 in its written statement admitted that the opponent No. 1 is insured vide Error and Omission Insurance policy and therefore both the opponents are jointly and severally liable to pay aforesaid amount. “

18. We find force in the contention of the learned Counsel appearing for the Complainants that the State Commission has not taken into consideration that the Patient, who expired, was only 28 years old and was contributing to the family income. Even the prospect of her salary being increased was not considered. Moreover she was also a home maker spouse whose contribution is significant and capable of being measured in monetary terms. Further, we are of the view that the Complainants were also not compensated for the loss of love and affection of the family members, who is the wife of the first Complainant and the mother of the second Complainant.

19. The State Commission has only taken into consideration a very conservative figure of contribution of the Patient of 16,800 per annum and given a multiplier effect of 16 and arrived at 2,68,000 in which the actual medical expenses of 30,000 was added and totalled to 2,98,800 and the same was rounded off to 3,00,000.

20. In Lata Wadhwa & Ors. v. State of Bihar, V (2001) SLT 826=II (2001) ACC 316 (SC)=(2001) 8 SCC 197, a three-Judge Bench of the Hon’ble Supreme Court took into consideration the multifarious services rendered by a home maker and held the estimate arrived at 12,000 per annum to be very low and enhanced the same to 36,000 per annum for the age group of 34 to 59 years. In the instant case the Patient was working as a teacher, was only 28 years old and the mother of two children. She is also a homemaker and a part of the family which has lost a wife and a mother. In Malay Kumar Ganguly v. Sukumar Mukherjee, III (2009) CPJ 17 (SC)=VI (2009) SLT 164=III (2009) CCR 558 (SC)=(2009) III SCC 663, the Hon’ble Supreme Court has observed as follows:

“172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the Court for a long time. For compensating a husband for loss of his wife, therefore, the Courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife’s contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband’s income, etc.”

21. We rely on the decision of the Hon’ble Supreme Court in Arun Kumar Manglik v. Chirayu Health and Medicare Private Limited & Anr., III (2019) CPJ 1 (SC)=2019 (3) SCALE 333, wherein it is observed as follows:

“53. ……..Thus, in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.

54. In assessing the amount of compensation, we have been guided by the principle which has been laid down by the Constitution Bench in Lata Wadhwa and in National Insurance Company Ltd. v. Pranay Sethi18 with suitable modifications in a case involving medical negligence.

55. In our view, the interests of justice would be met, if the amount of compensation is enhanced. We accor

Please Login To View The Full Judgment!

dingly, direct that the appellant shall be entitled to receive an amount of Rs. 15 lakh by way of compensation from the first respondent.” 22. Even in the instant case the State Commission has not taken into consideration the loss of love and affection and the multifarious activities performed by a home maker, apart from the fact that she was also contributing to the family income as she was a school teacher under training. Taking into consideration all the aforementioned factors we are left with no other option but to enhance the compensation from 3,00,000 to 8,00,000, which in our considered opinion is not only reasonable but just and proper on the facts and circumstances of the present case and shall also meet the ends of justice. It shall also bring solace to the family members of the deceased Patient. It is relevant to mention that the treating Doctor is covered for the period 8.3.2000 to 7.3.2001 for an amount of 10,00,000 under error and omission policy No. 4621020102791 issued by the Insurance Company to the treating Doctor. It is clarified that the amount of compensation of 3,00,000 awarded by the State commission is enhanced to 8,00,000. The rest of the order of the State Commission stand confirmed with respect to interest. It is observed that the State Commission has awarded only 5,000 towards cost and the same is being enhanced to 25,000. 23. In the result, First Appeal No. 425 of 2012 preferred by the Insurance Company is dismissed with costs of 10,000 to be paid to the Complainants and First Appeal No. 293 of 2012 preferred by the Complainants is allowed in part modifying the order of the State Commission, enhancing the compensation from 3,00,000 to 8,00,000 with interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation together with costs of 25,000. The statutory amount deposited in First Appeal No. 425 of 2012 stands transferred to Consumer Legal Aid Account of this Commission. 24. Time for compliance of the order is four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 12% p.a. for the same period. Ordered accordingly.