IMPORTANT POINT
Negligence and vicarious liability – ESI Corporation, having received the subscription from the subscriber/complainant and having admitted that the death of the child was due to administration of drug that was wrongly distributed by the Pharmacy at the ESI Dispensary concerned, cannot have any locus standi now to say that they cannot be fastened with any vicarious liability or otherwise for the apparent negligence-cum-service deficiency on the part of the ESI Dispensary Pharmacist, who wrongly distributed the drugs.

ORDER

R. Subbiah, President.—The appellant/ESI Corporation challenges the Order, dated 07.01.2014, passed in C.C. No.38 of 2004 by the DCDRF, Chennai-North, whereby, the District Forum held the ESI Corporation/1st OP vicariously liable for the wrong distribution of drugs by the Pharmacist at the 2nd OP/ESI Dispensary to the complainant’s child, who died due to administration of the said drugs that turned to be harmful, and ultimately allowed the complaint by directing the appellant to pay the complainant/mother a sum of Rupees Five Lakh as compensation with interest @ 9% p.a. from the date of complaint till the date of payment, besides a sum of Rs.5,000/- towards litigation costs.

2. For the sake of convenience, the parties are referred to in the course of this Order as per their respective rankings before the District Forum.

In brief, the case of the complainant, as projected in the complaint filed before the District Forum, is as follows:-

The complainant, an employee of M/s.Isex Fashions Pvt. Ltd., Palavakkam, Chennai-41, and a subscriber under the Employees’ State Insurance (ESI) Scheme that covered herself and her family members vide insurance No.13329270, on 18.06.2003, took her son, who was suffering from cold, cough and fever, to the ESI Dispensary at Thiruvanmiyur, where, the 2nd OP/Medical Officer examined the child and prescribed certain drugs which she had collected from the Pharmacy attached to the Hospital. After administration of the drugs as per the prescription given by the 2nd OP, on 22.06.2003, the condition of the child became very serious and he was immediately taken to SP clinic at Injambakkam and diagnosed to have consumed harmful drugs that would pose threat to the child’s life. As per the advice given at the said Clinic, the child was rushed to the Children Hospital at Egmore, where, it was confirmed that the drugs administered were harmful to the child and that the chance of recovery was minimal. The matter was reported to the police and the complainant/mother handed over the drugs provided at the ESI dispensary to the police authorities in the presence of the Duty Doctor at the Children Hospital by stating that she had availed the services rendered by the OPs and that, after administration of drugs as prescribed and distributed at the Pharmacy of the 2nd OP, her son fell into the serious condition. Despite treatment at the Children Hospital between 22nd and 25th June, 2003, the child died as a result of negligent and wrong medication given by the Opposite Parties. Only due to the deficiency in service and dereliction of duty on the part of the OPs, the complainant had lost her child and hence, she sought the District Forum to direct the OPs to pay her a total compensation of Rs.10 lakh on different heads, besides the litigation expenses.

3. The 1st OP/ESI Corporation resisted the case by filing a written version, wherein, it is mainly stated that they are in no way responsible for the lapses in providing medical treatment by the 2nd OP/Dr. Karthikeyan, Insurance Medical Officer, ESI Dispensary, Adyar, under the direct control of the DMS/ESI Scheme, who alone is solely responsible for the lapses, if any, in providing the medical treatment. Thus, they sought for dismissal of the complaint insofar as it pertains to the 1st OP.

4. The 2nd OP, in the written version filed by him, among other things, stated that, in view of the bar under Section 75(3) of the ESI Act, the complainant, who claims to be a member of the ESI Scheme and received treatment for her child from the ESI Dispensary run by the State Government, cannot seek any remedy under the Consumer Protection Act. It is true that the complainant brought her minor son to the ESI Dispensary, Adyar, on 18.06.2003 at about 7.30 AM, complaining fever, cough and cold, for which, after examination, the 2nd OP prescribed the syrups – Orthobid & Tixylix and Sparmax tablets, which she received from the Pharmacy and thereafter, she never turned up for any a