SAVITA GARG VS DIRECTOR, NATIONAL HEART INSTITUTE

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Supreme Court of India
B.N. Agrawal & A.K. Mathur, JJ.
SMT. SAVITA GARG—Appellant
versus
THE DIRECTOR, NATIONAL HEART INSTITUTE—Respondent
Civil Appeal No. 4024 of 2003 from Judgment and Order dated 6.2.2003 of National Consumer Disputes Redressal Commission, New Delhi in O.P. No. 121 of 1995—Decided on 12.10.2004

Counsel for the Parties :
For the Appellant :Mr. Dinesh Kumar Garg and Mr. Manzoor Ali Khan, Advocates.
For the Respondent:Mr. Rajshekhar Rao, Advocate for Mr. Nikhil Nayyar, Advocate.

Headnote:Consumer Protection Act, 1986-Sections 21 and 22-Medical Negligence complaint-Dismissal of complaint by National Commission on ground of non-joining of treating doctor as necessary party-Whether order was sustainable? No-As far as Commission is concerned, provisions of CPC were applicable to limited extent and not all the provisions of CPC were made applicable to proceedings before Forum-Burden could not be placed on patient or family members to implead all those doctors who had treated the patient-Hospital could discharge its burden by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence-Distinction between "contract for service" and "contract of service"-Summary dismissal of petition on question of non-joinder of necessary party was not proper.
Summary dismissal of the original petition by the Commission on the question of non-joinder of necessary parties was not proper. In case,the complainant fails to substantiate the allegation, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. The hospital/Institute is not going to suffer on account of non-joinder of necessary parties and Commission should have proceeded against hospital. Even otherwise also the Institute had to produce the concerned treating physician and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities

JUDGMENT

A.K. Mathur, J.—This appeal is directed against the order passed by the National Consumer Disputes Redressal Commission (hereinafter to be referred to as ‘the Commission’), New Delhi whereby the Commission has dismissed the original petition of the appellant on the ground of non-joinder of necessary parties.

2. Brief facts which are necessary for disposal of this appeal are as follows:

The appellant is the wife of one deceased A.K. Garg who was admitted to National Heart Institute (hereinafter referred to as ‘the institute’) for medical treatment and because of the negligence of the doctors of the Institute he could not get proper medical treatment and ultimately he died. The deceased A.K. Garg was employed as Electrical Engineer in I.D.P.L., Vir Bhadra (Rishikesh). The deceased was drawing a salary of Rs. 8,000/- per month at the time of his death. He left behind his family members namely, (i) Smt. Savita Garg (wife), (ii) Smt. Sushila Garg (mother), (iii) Shri Ankul Garg (son), (iv) Miss Ruchi (daughter), (v) Shri Sauragh (son) and (vi) Anoop Garg (brother). Prior to the admission of the deceased, A.K. Garg in the institute he was being treated at G.B. Pant Hospital and he did not improve there, therefore, his case was referred to the Institute by his employer, IDPL. The deceased was admitted for angiography on 4.7.1994 and a sum of Rs. 14,000/- was deposited for his treatment. He was discharged on 5.7.1994 after angiography. Again he was admitted on 2.8.1994 at 11.15 a.m. and remained there till 9.8.1994 and ultimately died at the Institute. It was alleged that on 3.8.1994 he was operated and was brought to the Intensive Care Unit of the Institute. No attendant was allowed to see the patient except through the glass windows of I.C.U. The deceased was operated twice by Dr. O.P. Yadav of the institute for his treatment. It is further alleged that Dr. O.P. Yadav was too much worried and perturbed after the deceased’s operation. On the said day i.e. on 3.8.1994, 8 bottles of blood were transfused in the body of the deceased and even on 4.8.1994 another 8 bottles of blood were demanded by the Doctors of the Institute and the same was somehow arranged. The deceased is said to have developed jaundice may be because of wrong transfusion or extra transfusion of blood. It is further alleged that the deceased developed septic and as the septic in the bone became incurable, therefore, a Doctor from Batra Hospital was called for to amputate one leg of the deceased A.K. Garg. Thereafter, as it was reported to be case of kidney failure, the deceased was put on dialysis. However, on 9.8.1994 at 2.30 hours the deceased was declared dead. Therefore, a complaint was filed before the Commission claiming a sum of Rs. 45 lacs, the details of which have already been given in the complaint. The appellant has detailed the reasons for the negligence in her original petition filed before the Commission. An affidavit in opposition was filed by the Institute and they denied the allegations of negligence and pointed out that all proper care was taken, there is no negligence on the part of the Institute. An objection was also taken that the provisions as contained in the Consumer Protection Act, 1986 do not satisfy the requirement of a complaint as defined under the Act as it does not disclose any deficiency. The Institute also challenged the jurisdiction of the Commission to entertain the said original petition.

3. A rejoinder was also filed by the appellant and it is alleged that septic was developed because of the negligence which shows lack of care on the part of the doctors. However, when the matter came up for hearing on 12.4.2002, the Commission directed both the parties to file brief notes of submissions on the question of maintainability of the complaint as well as the effect of non-impleading the attending doctors against whom the medical negligence has been alleged and the matter was posted to 2.5.2002 for directions. Thereafter, ultimate

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Cases Referred (3)