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PETITIONER: M/S. SPRING MEADOWS HOSPITAL & ANR

       Vs.

RESPONDENT: HARJOL AHLUWALIA THROUGH, K.S. AHLUWALIA & ANR

DATE OF JUDGMENT:       25/03/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 7858 OF 1997                       J U D G M E N T G.B. PATTANAIK, J.      These two  appeals arise  out of  the order  dated 16th June,  1997   passed  by   the  National  Consumer  Disputes Redressal Commission,  New Delhi (hereinafter referred to as ’the Commission’)  in Original Petition No. 292 of 1994. The Hospital is  the appellant  in Civil Appeal No. 7708 of 1997 while the  insurance company  is the  appellant in the other appeal. When the special leave applications out of which the two aforesaid  appeals arise  were  listed  for  preliminary hearing, the court had issued notice limited to the award of Rs. 5  lacs as compensation to the parents of the child even though the  insurance company has raised the question of its liability to pay the compensation in question.      A  Complaint   Petition  was   filed  by  minor  Harjot Ahluwalia through  his parents  Mrs. Harpreet  Ahluwalia and Mr. Kamaljit  Singh Ahluwalia before the Commission alleging that the  minor was being treated at a Nursing Home in Noida in December, 1993. As there was no improvement in his health the said minor was brought to M/s. Spring  Meadows Hospital, appellant in  Civil Appeal  No. 7708  of  1997  on  24th  of December, 1993.  In the hospital the patient was examined by the Senior Consultant Paediatrician, dr. Promila Bhutani and on the advice of the said doctor the patient was admitted as an in-patient in the hospital. The doctor made the diagnosis that the  patient was  suffering from  typhoid and intimated the parents  that medicines  have been  prescribed  for  the treatment of  the typhoid  fever. On  the 30th  of December, 1993 at  9.00 a.m.  Miss Bina Matthew, nurse of the hospital asked the father of the minor patient to get the injection - In Lariago  - to  be administered intravenously to the minor patient.  The  father  of  the  minor  child  purchased  the medicine which  was written  down by  the nurse and gave it, whereupon the  nurse injected the same to the minor patient. The patient,  immediately on  being injected collapsed while still in  the lap of his mother. it was further alleged that before administering  the injection  the nurse  had not made any sensitive  test to  find out  whether there would be any

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adverse reaction  on the  patient. Seeing  the  minor  child collapse the  parents immediately  called for  help and  the Resident Doctor Dr. Dhananjay attended the patient. Said Dr. Dhananjay told  the parents  that the  child had  suffered a cardiac arrest  and then  by manually  pumping the chest the Doctor attempted  to  revive  the  heartbeat.  The  hospital authorities then  summoned an  Anaesthetist, Dr.  Anil Mehta who arrived within half an hour and then started a procedure of manual  respiration by  applying the  oxygen cylinder and manual Respirator.  In the meantime Dr. Promila Bhutani also reached the  hospital and  the minor  child was  kept  on  a device called  manual Respirator.  Though the child was kept alive on  the manual  ventilator but  the condition  of  the child did  not show  any improvement. In course of treatment as the minor’s platelets count fell, a blood transfusion was given but  still no  improvement could  be seen.  Dr. mehta, therefore, intimated  the parents that the hospital does not have the  necessary facilities to manage the minor child and the should  be shifted  to an  intensive Care  Unit equipped with an  Auto Respirator.  On the  advice of  Dr. Mehta  the parents brought the child and admitted him in the Paediatric Intensive Care  Unit of  the All  India Institute of Medical Science on  the 3rd  January, 1994.  In  the  Institute  the doctors examined the minor child thoroughly and informed the parents that  the child  is critical  and even  if the would survive, he  would  live  only  in  a  vegetative  state  as irreparable damage  had been  caused to  his brain and there was no  chance of  revival of  the damaged p[arts. The minor was then  kept in  the Paediatric Intensive Care Unit of the AIIMS  till   24th  of  January,  1994  and  was  thereafter discharged  after  informing  the  parents  that  no  useful purpose would  be served  by keeping  the minor child there. Dr.  Anil   Mehta  as  well  as  Dr.  Naresh  Juneja,  Chief Administrator of  Spring Meadows  Hospital, however, offered to admit  the minor  child  at  their  hospital  and  to  do whatever was  possible to  stabilise the  condition  of  the child and accordingly the minor child was again admitted  to the hospital.  The complainant  alleged that  the  child  on account of  negligence and  deficiency on  the part  of  the hospital authorities  suffered irreparable damages and could survive only  as a  mere vegetative  and accordingly claimed compensation to the tune of Rs. 28 lacs.      On behalf  of the appellants objection was filed before the commission  taking the stand that no payment having been made it  cannot be  said that  the services  of the hospital having been  availed  for  consideration  and  as  such  the complainant is  not a  consumer  within  the  definition  of ’Consumer’ in  the Consumer  Protection Act,  1986.  It  was further  stated   that  there  has  been  no  deficiency  or negligence in  service on  the part  of the  doctors of  the hospital and  the negligence,  if any, is on the part of the nurse who  misread the  prescription. It  was also contended that immediate  steps have  been taken  by Dr.  Dhananjay as Well as  dr. Mehta and the hospital authorities had summoned three specialists  to examine  the patient.  It was  further stated that the patient was taken to the All India Institute of Medical  Sciences by the parents for better treatment but on  being   discharged  from   the  Institute  the  hospital authorities  on  sympathetic  consideration  readmitted  the child and  are taking  all possible  steps  and  giving  all possible treatment  without any  payment and  at no point of time there  has been  any negligence  on  the  part  of  the doctors attending  the minor  child in  the hospital. It was also  urged   that  in   any  event  the  liability  to  pay compensation would be that of the insurer.

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    Miss Bina  Matthew the  nurse who  injected the Lariago injection to  the child,  who was opposite party No.2 before the Commission field her objections station therein that she is a  qualified nurse  and had  exercised all  diligence and care in  discharging her  duties. It was further stated that the patient  was under  the treatment of Dr. Bhutani who had the duty to decide the course treatment and as nurse she was only working  under her  control  and  direction.  She  also stated that  as the  patent was already taking lariago syrup and when  the doctor  advised that injection should be given she thought  that the same lariago injection to be given and it was  the duty  of the  duty of  the doctor  to  give  the injection and take all care.      The insurer-opposite no. 3- which is appellant in Civil Appeal No.  7858 of  1997 contested  the claim  and took the defence that  there has been no deficiency in service on the part of  the reinsurance  company and  the provisions of the Consumer Protection  Act could  not be  invoked against  the insurer. According  to the  insurer  the  insurance  company issued medical  establishment professional negligence errors and omissions  insurance policy and the terms and conditions of the  policy would  indicate that  the  liability  of  the insurer, if  any, is  to the  extent of  12,50,000/- and not beyond the  same and  further the  insurer  cannot  be  made liable when  the liability in question has arisen on account of negligence  or deliberate non-compliance of any statutory provisions  or   intentional  disregard   o  the   insured’s administrative management of the need to take all reasonable steps to  prevent the  claim. According  to the  insurer the nurse Miss Bina Matthew was not a qualified nurse at all and she  was not  authorised to  take up the employment as a nurse not having been registered with any Nursing Council of any State.  It was  also stated  t hat  the present state of affairs of the minor child is on account of negligence of an unqualified nurse  and therefore  the insurer cannot be made liable to pay for any loss or damage sustained. In course of the proceedings  before the Commission to assess the minor’s condition  and  rehabilitation  requirement  the  Commission referred  the   matter  to   the   medical   Superintendent, Safdarjung Hospital  by order  dated 28th January, 1997, and in pursuance to such order the said minor was examined and a report was  received by  the  Commission  from  the  Medical Superintendent,  Safdarjung   Hospital,   New   Delhi.   The Commission also  examined witnesses including Dr. J.S. Nanra and Dr.  A.S. Ahluwalia  who testified  that on account of a medicine  having  been  injected  the  minor  suffered  from cardiac arrest  on account  of  which  the  brain  has  been damaged. on  the basis  of the oral and documentary evidence on record  the Commission  came to  the conclusion  that the child had  suffered from  cardiac arrest  and cause  of such cardiac arrest  was intravenous injection of lariago of high dose. The  Commission also came to the conclusion that there has been  considerable   delay in  reviving the heart of the minor child  and on  account of  such delay the brain of the minor child  got damaged.  On the question of the negligence of services the Commission came to the conclusion that there was a clear dereliction of duty on the part of the nurse who was not  even  a    qualified  nurse  and  the  hospital  is negligent having  employed such  unqualified people as nurse and  having  entrusted  a  minor  child  to  her  care.  The Commission also  came to  the conclusion  that Dr. Dhananjay was negligent  in the performances of his duties inasmuch as while Dr.  Bhutani had  advised that the injection should be given by  the doctor  but he permitted the nurse to give the injection. The  Commission, ultimately  came to  the finding

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that  the   minor  patient   had  suffered   on  account  of negligence, error  and omission on the part of nurse as well as Dr.  Dhananjay in  rendering their  professional services and both  of them  were negligent in performing their duties in consequence  of which  the minor child suffered and since the doctor  and the nurse were employees of the hospital the hospital is  responsible for the negligence of the employees and  the  hospital  is  liable  for  the  consequences.  The Commission then  determined the  quantum of compensation and awarded 12.5  lacs as  compensation to the minor patient. In addition  to  the  aforesaid  sum  of  Rs.  12.5  lacs,  the Commission also  awarded Rs.  5 lacs  as compensation  to be paid to  the parents of the minor child for the acute mental agony that has been caused to the parents by reason of their only son having been reduced to a vegetative state requiring life long  care  and  attention.  On  the  question  of  the liability of  the reinsurance company the Commission came to hold that  the said insurance company is liable to indemnify the amount  of Rs.  12,37,500/- in  terms of  the policy  on account of  the liability  of the  hospital as  the case  is fully covered  under the  indemnity clause.  The  Commission then considered  the  question  as  to  how  the  amount  of compensation should  be disbursed  for being  spent for  the welfare of the child and then issued certain directions with which we are not concerned in this appeal.      The learned counsel for the appellant appearing for the hospital contended  that the  complaint having been filed by the minor  child who  was the  in-patient  in  the  hospital through his  parents the  said minor  child can  only be the consumer and the parents cannot claim any compensation under the Consumer  Protection Act  for the mental agony they have suffered and  as such  the award of compensation to the tune of Rs.  5 lacs  in favour  of  the  parents  is  beyond  the competence of the Commission. The learned counsel then urged that under  the Consumer Protection Act the consumer to whom services has  been provided  can make a complaint and in the case in  hand the services having been provided to the minor patient,  he   becomes  the  consumer  and  consequently  no compensation can  be awarded in favour of the parents of the consumer and according to the learned counsel it is apparent from the  provisions of  Section 12(1)(a)  of  the  Consumer Protection Act.  The learned  counsel lastly  contended that under Section  14(1) (d)  of the Act the Commission would be entitled to  pay such amount as compensation to the consumer for any  loss or damage suffered by such consumer and in the case  in  hand  the  minor  child  being  the  consumer  the Commission was  not competent  to award  compensation to the parents for the mental agony they have suffered. The learned counsel for  the insurer  - appellant  in the  other  appeal vehemently contended  that insurer  cannot be held liable to indemnify the  hospital who  is  the  insured  as  the  said hospital  had  employed  unqualified  people  to  treat  the patients and  the  direction  of  the  Commission  that  the insurer would indemnify the insured is unsustainable in law. But we  are not  in a  position to  examine this  contention advanced on  behalf of the learned counsel appearing for the insurer in  view of the limited notice issued by this Court. It would  not be  open for us to entertain this question for consideration as  the notice  issued by this Court indicates that only  the award  of compensation  to the parents of the minor child  and the  legality of  the  same  can  only  the considered.  We   are,  therefore,  unable  to  examine  the contention raised  by the  learned counsel appearing for the insurer.      In view  of the submissions made by the learned counsel

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appearing for the hospital the following questions arise for our consideration: 1.   The minor child being the patient who was admitted into      the hospital for treatment can the parents of the child      be held to be consumers so as to claim compensation      under the provisions of the Consumer Protection Act? 2.   Is the  commission under  the  Act  entitled  to  award      compensation to the parents for mental agony in view of      the powers  of the  commission under  Section 14 of the      Act? 3.   Even if  the child  as well as the parents of the child      would come  under definition  of the  ’consumer’  under      Section 2(1) (d) of the Act whether compensation can be      awarded in favour of both the consumers or compensation      can be  awarded only to the beneficiary of the services      rendered, who  in the  present case  would be child who      was admitted into the hospital?      Before we  examine the  aforesaid questions it would be appropriate to  notice the  scenario in which the parliament enacted the Consumer Protection Act (hereinafter referred to as ’the Act’). The United Nations had passed a resolution in April, 1985  indicating certain  guidelines under  which the Government could  make law  for  better  protection  of  the interest of  the consumers. Such laws were necessary more in the developing  countries  to  protect  the  consumers  from hazards to  their health  and safety and make them available speedier  and   cheaper  redress.  Consumerism  has  been  a movement in  which the  trader and  the consumer  find  each other  as   adversaries.  Till  last  two  decades  in  many developed  and   developing  countries   powerful   consumer organisations   have    come   into   existence   and   such organisations have instrumental in dealing with the consumer protection laws  and in  expansion of  the horizon  of  such laws. In our country the legislation is of recent origin and its efficacy  has not been critically evaluated which has to be done  on the  basis of  experience. Undoubtedly  the  Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary  court system.  The Act  gives a  comprehensive definition of  consumer who  is the principal beneficiary of the legislation  but  at  the  same  time  in  view  of  the comprehensive definition  of  the  term  ’consumer’  even  a member of the family cannot be denied the status of consumer under the  Act and  in an  action by  any such member of the family for  any deficiency  of service,  it will not be open for a  trader to  take a  stand that  there is no privity of contract. The  Consumer Protection  Act confers jurisdiction on the  Commission in  respect of matters where either there is defect  in goods  or there  is deficiency  in service  or there has  been an  unfair and restrictive trade practice or in the  matter of charging of excessive price. The Act being a beneficial  legislation intended  to confer  some speedier remedy on  a consumer  from being  exploited by unscrupulous traders, the  provisions thereof  should receive  a  liberal construction.      In the case in hand we are dealing with a problem which centres round  the medical  ethics and  as such  it  may  be appropriate to  notice the  broad responsibilities  of  such organisations who  in the  garb  of  doing  service  to  the humanity have  continued commercial activities and have been mercilessly extracting  money  from  helpless  patients  and their family  members and  yet do  not provide the necessary services. The  influence exhorted by a doctor is unique. The relationship between  the doctor  and  the  patient  is  not always equally balanced. The attitude of a patient is poised

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between trust  in the  learning of  another and  the general distress of  one who  is in  a state of uncertainty and such ambivalence naturally  leads t a sense of inferiority and it is, therefore,  the function  medical ethics  to ensure that the superiority  of the  doctor is not abused in any manner. It is  a great  mistake to  think that doctors and hospitals are easy  targets for the dissatisfied patient. it is indeed very difficult  to raise  an action  of negligence. Not only there are  practical  difficulties  in  linking  the  injury sustained with  the medical  treatment but  also it is still more difficult  to establish the standard of care in medical negligence of  which a  complaint can  be  made.  All  these factors together  with the sheer expense of bringing a legal action and  the denial  of legal  aid to all but the poorest operate to  limit medical  litigation in  this country. With the emergence  of the  Consumer Protection  Act no  doubt in some  cases   patients  have  been  able  to  establish  the negligence of  the doctors  rendering service  an din taking compensation thereof  but the same is very few in number. In recent days  there has  been increasing pressure on hospital facilities, falling  standard of professional competence and in addition  to  all,  the  ever  increasing  complexity  of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a  growing awareness  in the  public mind  to bring the negligence of such professional doctors to light. Very often in  a   claim  for   compensation  arising  out  of  medical negligence a  plea is  taken that  it is a case of bona fide mistake which  under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In  the  former  case  a  court  can  accept  that ordinary human  fallibility precludes the liability while in the latter  the conduct  of the  defendant is  considered to have gone  beyond the  bounds of  what is  expected  of  the reasonably skill  of a  competent doctor.  In  the  case  of Whitehouse v  Jordan and  another, [1981]  1 ALL  ER 267, an obstetrician had  pulled too  hard in  a  trial  of  forceps delivery and  had thereby  caused the  plaintiff’s  head  to become wedged with consequent asphyxia and brain damage. The trial judge  had held  the action  of the  defendant  to  be negligent but  this  judgment  had  been  reversed  by  Lord Denning, in  the Court  of Appeal, emphasising that an error of judgment  would not  tantamount to  negligence. When  the said matter  came before  the House  of Lords,  the views of Lord Denning  on the  error of  judgment was rejected and it was held that an error of judgment could be negligence if it is an  error which  would not have been made by a reasonably competent professional  man acting  with ordinary care. Lord Fraser pointed out thus;      "The true position is that an error      of judgment  may, or  may  not,  be      negligent; it depends on the nature      of the  error. If  it is  one  that      would  not  have  been  made  by  a      reasonably  competent  professional      man profession to have the standard      and  type   of   skill   that   the      defendant  holds   himself  out  as      having, and  acting  with  ordinary      care, then it is negligence. If, on      the other hand, it is an error that      such a  man, acting  with  ordinary      care, might  have made,  then it is      not negligence."      Gross medical  mistake will  always result in a finding

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of negligence.  Use of  wrong drug  or wrong  gas during the course of anaesthetic will frequently lead to the imposition of liability  and in  some situations  even the principle of Res  ipsa  loquitur  can  be  applied.  Even  delegation  of responsibility  to  another  may  amount  to  negligence  in certain circumstances. A consultant could be negligent where he delegates  the responsibility  to  his  junior  with  the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard,  which  will  be  dealt  with  while  answering  the question posed by us.      Question Nos.  1 and 3 are inter-linked, and therefore, they are  discussed  together.  The  answer  to  both  these questions  would   depend  upon  an  interpretation  of  the expression ’consumer’ in Section 2(1)(d) of the Act. Section 2(1)(d) is extracted hereinbelow in extenso:      2(1)(d) :  "  Consumer"  means  any      person who -      (i)   buys    any   goods   for   a           consideration which  has  been           paid  or  promised  or  partly           paid an  partly  promised,  or           under any  system of  deferred           payment and  includes any user           of such  goods other  than the           person who buys such goods for           consideration paid or promised           or  partly   paid  or   partly           promised, or  under any system           of deferred  payment when such           use is  made with the approval           of such  person, but  does not           include a  person who  obtains           such goods  for resale  or for           any commercial purpose; or      (ii)  hires   or  avails   of   any           services of  ra  consideration           which   has   been   paid   or           promised or  partly  paid  and           paid  or  promised  or  partly           paid and  partly promised,  or           under any  system of  deferred           payment   and   includes   any           beneficiary   of such services           other  than   the  person  who           hires   or   avails   of   the           services   for   consideration           paid or  promised,  or  partly           paid and  partly promised,  or           under any  system of  deferred           payment,  when  such  services           are  availed   or   with   the           approval    of    the    first           mentioned person;           Explanation -  For the purpose      of   sub-clause   (i)   "commercial      purpose " does not include use by a      consumer of  goods bought  and used      by him  exclusively for the purpose      of earning his livelihood, by means      of self-employment.      In the  present case, we are concerned with clause (ii) of Section 2(1)(d). In the said clause a consumer would mean a person  who hires  or avails  of the services and includes

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any beneficiary  of such  services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the  parents would  come within  the  definition  of consumer having hired the services and the young child would also become  a consumer under the inclusive definition being a beneficiary  of such services. The definition clause being wide enough  to include  not only  the person  who hires the services but  also the  beneficiary of  such services  which beneficiary is other than the person who hires the services, the conclusion  is irresistible that both the parents of the child as  well as  the child  would be  consumer within  the meaning of  Section 2(1)(d)(ii)  of the  Act and as such can claim compensation under the Act.      So  far  as  the  second  question  is  concerned,  the contention of  the learned counsel for the appellant is that Section 14 being the provision authorising the Commission to pass appropriate orders under one or more of the clauses (a) to (i) and clause (d) alone being the provision for award of compensation,  the   Commission   is   entitled   to   award compensation,  the   Commission   is   entitled   to   award compensation for any loss or injury suffered by the consumer due to  the negligence of the person whose services had been hired and  that being  the position it would be open for the Commission to  award compensation to the minor child who has suffered injury  and not  the parents.  In other  words, the learned counsel  urged that clause (d) of Section 14 may not be interpreted enabling the Commission to award compensation both to  the minor  child and his parents. We see absolutely no  force  in  the  aforesaid  contention  inasmuch  as  the Commission would  be entitled  to award  compensation  under clause (d)  to a consumer for any loss or injury suffered by such consumer  due to  the negligence of the opposite party. If the parents of the child having hired the services of the hospital  are   consumer  within   the  meaning  of  Section 2(1)(d)(ii)    and  the  child  also  is  consumer  being  a beneficiary of  such services  hired by  his parents  in the inclusive definition  in Section  2(1)(d) of  the  Act,  the Commission will  be fully justified in awarding compensation to both  of them  for  the  injury  each  one  of  them  has sustained. In  the case  in hand  the Commission has awarded compensation in  favour  of  the  minor  child  taking  into account the  cost of  equipments and  the recurring expenses that would  be necessary  for the  said minor  child who  is merely having  a vegetative life. Te compensation awarded in favour of  the parents of the minor child is for their acute mental agony  and the life long care and attention which the parents would  have to  bestow on the minor child. The award of compensation  in respect  of respective  consumers are on different head.  We see  no infirmity  with the order of the Commission awarding  different  amount  of  compensation  on different  head,   both  being   consumers  under  the  Act. Accordingly,  the   Commission  in  our  considered  opinion rightly awarded  compensation in  favour of  t he parents in addition to  the compensation  in favour  of the  parents in addition to the compensation in favour of the minor child.      The learned counsel for the appellants in course of his argument  has   contended  that   not  only   the   hospital authorities  had   immediately  on   their  own   taken  the assistance of  several specialists  to treat  the child  but also even  after the child was discharged from the All India Institute of  Medical Sciences,  humanitarian  approach  has been taken  by the  hospital authorities  and child has been taken care  of by  the hospital  even without  charging  any money for  the services  rendered and consequently in such a

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situation the  award of  damages for  mental  agony  to  the parents  is   wholly  unjustified.   We,  however,  fail  to appreciate this  argument advanced  on behalf of the learned counsel for  the appellants  inasmuch as the mental agony of the parent will not be dismissed in any manner merely seeing the only  child living  a vegetative  state  on  account  of negligence of  the hospital  authorities on  a hospital bed. The agony of the parents would remain so long as they remain alive  and   the  so-called  humanitarian  approach  of  the hospital authorities  in no  way can  be considered  to be a factor in denying the compensation for mental agony suffered by the parents.      In the premises as aforesaid, the contentions raised by the learned  counsel appearing  for  the  appellants  having failed, the appal fails and is dismissed.      Accordingly both  the appeals  are dismissed with costs of Rs. 5,000/-.