IMPORTANT POINT
State Commission was right in holding that impugned case is not only of deficiency in service but also of medical negligence but based on monthly salary of deceased the compensation needs to be modified from 2,00,000/- to 1,25,000/- alongwith interest @ 9% p.a. w.e.f. 1-8-1994 till payment.

B.K. Taimni, Member—Appellants were the opposite party before the State Commission, where the respondents/complainants had filed a complaint alleging medical negligence and deficiency in service on the part of the appellants.

2. Briefly put, as per the complainant, his deceased wife who was working in Westing House Farmer Ltd., in Kolkata and by virtue of which she was a card holder of E.S.I. Hospital, went to the respondent Hospital at about 6:30 A.M. on 4.7.93 with complaint of severe pain in her abdomen. She was not examined till 11:30 A.M. and at this hour she was diagnosed with having pain in abdomen which was acute. However, the hospital authority refused to admit her as there was no ‘bed’ available. At about 12:30 P.M. she was advised to seek medical assistance from any other E.S.I. Hospital. According to the complainant, he took his wife to E.S.I. Hospital at Grant Lane and Ganesh Chandra Avenue, Kolkata, where she met with the same fate and was not attended to and finally she was admitted in a private nursing home (Bliss Nursing Home), where she died on 5.7.93. It is in these circumstances that a complaint was filed alleging deficiency in service and medical negligence, praying for a compensation of over Rs. 7 lakh on the ground that the deceased was working lady, she was aged 34 years and she would have worked for another 24 years. The Appellants filed the written version before the State Commission and stated that the deceased came to the Hospital at 1.00 P.M. where she was treated at the earliest and as no bed was available for admission, they advised her to seek admission in some other E.S.I. Hospital. After the evidence was filed by the parties, the deponents were cross-examined and after hearing the parties at length, the State Commission allowed the complaint and directed the appellant to pay Rs. 2,00,000 to the complainant and for the children of the deceased wife along with cost of Rs. 5,000. Aggrieved by this order this appeal has been filed before us.

3. We heard the Ld. Counsel for the parties at some length. Two things emerge very clear—one that the attending doctor, Dr. Debashish Chaudhary, whose affidavit was filed on behalf of the Appellants, admit that he was on duty from 8.00 A.M. to 2.00 P.M. No other material has been shown to us if there was any doctor on duty at 6.30 A.M. for attending to any ‘medical-emergency’ cases. Secondly, as per material produced before the State Commission in the form of ‘outdoor patient ticket’, it does not show any treatment or medicine administered on the deceased despite her being diagnosed with severe abdomen pain. Instead she was directed to approach some other E.S.I. Hospital as there was no bed available. Like State Commission, we fail to understand as to what a hapless patient in such a condition of acute pain could have done? As per material on record and reply filed before the State Commission by the Appellant, we are satisfied that there was no doctor on duty when the deceased with her husband reached the hospital as duty doctor came only from 8.00 A.M. onwards and she was attended to only at about 1.00 P.M. though the complainant states that she was attended by the doctor at about 11.30 A.M. A flimsy defence was sought to be taken before the State Commission that she was not a ‘Consumer’ despite law having been settled by that time, that she would fall within the category of ‘Consumer’ as being an E.S.I. Card-holder, she was entitled to facilities from the hospital.

4. A vain attempt is also made in the ‘Memo of Appeal’ and also in the oral arguments advanced before us that there is no E.S.I. hospital in Ganesh Chandra Avenue or Rajarhat. In our view, this has no bearing in the case, as in our view, as rightly held by the State Commission, the Appellant was obliged to entertain and treat the E.S.I. Hospital Card-holder. Instead of treating the deceased, as per OPD Ticket, complete apathy has been shown by the Appellants by not only not treating her wit