V. Kishan Rao vs Nikhil Super Speciality Hospital & Anr

3. The appellant, who happens to be the original complainant, is an officer in the Malaria department and he got his wife admitted in the Respondent No. 1 hospital on 20.07.02 as his wife was suffering from fever which was intermittent in nature and was complaining of chill.

4. In the complaint, the appellant further alleged that his wife was subjected to certain tests by the respondent No.1 but the test did not show that she was suffering from malaria. It was also alleged that his wife was not responding to the medicine given by the opposite party No.1 and on 22nd July, 2002 while she was kept admitted by respondent No.1. Saline was given to her and the complainant had seen some particles in the saline bottle. This was brought to 2 the notice of the authorities of the respondent No.1 but to no effect. Then on 23rd July 2002 complainant's wife was complaining of respiratory trouble and the complainant also brought it to the notice of the authorities of the respondent No.1 who gave artificial oxygen to the patient. According to the complainant at that stage artificial oxygen was not necessary but without ascertaining the actual necessity of the patient, the same was given. According to the complainant his wife was not responding to the medicines and thus her condition was deteriorating day by day. The patient was finally shifted to Yashoda Hospital from the respondent No.1.

6. In the affidavit, which was filed by one Dr. Venkateswar Rao who is a Medical Practitioner and the Managing Director of the respondent No.1 before the District Forum, it was admitted that patient was removed from respondent No.1 to the Yashoda Hospital being accompanied by the doctor of the respondent No.1. From the particulars noted at the time of admission of the patient in Yashoda Hospital it is clear that the patient was sent to Yashoda Hospital 4 in a very precarious condition and was virtually, clinically dead.

7. On the complaint of the appellant that his wife was not given proper treatment and the respondent No.1 was negligent in treating the patient the District Forum, on a detailed examination of the facts, came to a finding that there was negligence on the part of the respondent No.1 and as such the District Forum ordered that the complainant is entitled for refund of Rs.10,000/- and compensation of Rs.2 lakhs and also entitled to costs of Rs.2,000/-.

8. The District Forum relied on the evidence of Dr. Venkateswar Rao who was examined on behalf of the respondent No.1. Dr. Rao categorically deposed "I have not treated the case for malaria fever". The District Forum found that the same is a clear admission on the part of the respondent No.1 that the patient was not treated for malaria. But the death certificate given by the Yashoda Hospital disclosed that the patient died due to "cardio respiratory arrest and malaria". In view of the aforesaid finding the District Forum came to the conclusion that the 5 patient was subjected to wrong treatment and awarded compensation of Rs.2 lakhs and other directions as mentioned above in favour of the appellant. The District Forum also noted when the patient was admitted in a very critical condition in Yoshoda Hospital the copy of the Haematology report dated 24.7.2002 disclosed blood smear for malaria parasite whereas Widal test showed negative. The District Forum also noted that the case sheet also does not show that any treatment was given for Malaria. The Forum also noted that the respondent-authorities, despite the order of the Forum to file the case sheet, delayed its filing and there were over writings on the case sheet. Under these circumstances the District Forum noted that case records go to show that wrong treatment for Typhoid was given to the complainant's wife. As a result of such treatment the condition of the complainant's wife became serious and in a very precarious condition she was shifted to Yashoda Hospital where the record shows that the patient suffered from malaria but was not treated for malaria. Before the District Forum, on behalf of the respondent No.1, it was argued that the complaint sought to prove Yashoda Hospital record without 6 following the provisions of Sections 61, 64, 74 and 75 of Evidence Act. The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice (See paragraph 43, page 252 of the report).

9. Aggrieved by the order of the District Forum respondent No. 1 preferred an appeal to the State Consumer Disputes Redressal Commission (FA No. 89 of 2005) and the insurance company, which is respondent no. 2 before this Court, preferred another appeal (FA no. 1066 of 2005). The State Forum vide its order dated 31.10.2008 allowed the appeals.

55. For the reasons discussed above, this Court holds that it is not bound by the general direction given in paragraph 106 in D'souza (supra). This Court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opining to the contrary. This Court is constrained to set aside the orders passed by the State Commission and the National Commission and restores the order passed by the District Forum. The respondent no.1 is directed to pay the appellant the amount granted in his favour by the District Forum within ten weeks from date. 37

56. The appeal is thus allowed with costs assessed at Rs.10,000/- to be paid by the respondent No.1 to the appellant within ten weeks.