After about 12 years of issuance of the policies, it was intimated by the petitioner that during an audit conducted in the office of the petitioner Corporation, it was found that the premium on the two policies in question should have been paid half yearly by the respondent but because of a typographical error, the premium payable was inadvertently mentioned as annual because of which, the respondent kept on paying the premium on the two policies annually. This had resulted in short recovery of premium on the two policies and hence the petitioner informed the respondent vide its letter dated 20.5.2006 about the typographical error and requested him to make payment of the 12 year difference of Rs.14,796/- and Rs.33,732/- on account of the premium while the petitioner waived the late fee keeping in view the circumstances of the case. Undoubtedly, the contract of insurance is one of utmost good faith but there is no allegation of suppression, misstatement or misrepresentation on the part of the complainant/respondent while submitting his proposal for consideration and approval of the petitioner Corporation. Perusal of the policy documents indicates that there was no ambiguity about the mode of payment of premium under the two policies. In such a situation, even if there was a typographical mistake as claimed by the petitioner Corporation, the same was committed by the employees of the petitioner Corporation and it cannot be used to the disadvantage of the respondent / complainant by unilaterally changing the terms of the contract after a gap of 12 years. Undoubtedly, the petitioner Corporation is likely to suffer some under-recovery but in all fairness, the petitioner Corporation must bear it accepting the responsibility for mistake of its employees. Para 12 of Asha Goel’s case cited by counsel for the respondent reads as under:- “Mere inaccuracy or falsity in respect of some recitals or items in the proposal is not sufficient. The burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no question of the policy being avoided on ground of misstatement of facts. The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance.” 7. Keeping in view the essence of the ratio laid down by the Apex Court in Asha Goel’s case as also the peculiar facts the circumstances of this case, we do not find any illegality, material irregularity or jurisdictional error in the concurrent orders of the Fora below. The revision petition devoid of any substance stands dismissed with no order as to costs.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION No. 2099 OF 2009

(From the Order dated 09.03.2009 in Appeal No. 1372/2008 of 

M.P. State Consumer Disputes Redressal Commission, Bhopal)

The Branch Manager                                                              Petitioner

Life Insurance Corporation

Civil Lines, Narsinghpur                                                                  

Gadarwara, Madhya Pradesh

Through its Regional Office

Jeevan Bharati Building

1, Connaught Place

New Delhi-110001

                   

Versus

Sunil Kumar  Paliwal                                                            Respondent

S/o Late Sh. Chetram Paliwal

Jagdish Ward, Gadarwara

Distt. Narsinghpur

Madhya Pradesh

 

BEFORE:

                 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner                           :       Mr. Rajat Bhalla, Advocate

For the Respondent                       :         Mr. Vinod K. Shukla, Advocate

Pronounced on :  3^rd July, 2012

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the opposite party against the order dated 9.3.2009 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal (‘State Commission’ for short) thereby dismissing the first appeal No.1372 of 2008 filed by the petitioner. The petitioner/opposite party had filed the first appeal before the State Commission against the order dated 20.3.2008 passed by the District Consumer  Disputes Redressal Forum, Narsinghpur  (‘District Forum’ for short)  in complaint No.47 of 2006 whereby the District Forum allowed the complaint of the respondent/complainant directing the petitioner to pay the sum assured as per the conditions of the policy along with compensation of Rs.10,000/- and cost of Rs.1,000/-.

2.       The factual matrix of this case are that the respondent / complainant, Sunil Kumar Paliwal, had taken two “Jeevan Kishor” policies for his son and daughter bearing Nos. 3706336541 and 3706336544 for the period from 28.3.1994 to 28.3.2012 and 28.3.1994 to 29.3.2010 respectively. For the above policies, the prescribed annual premium was Rs.1233/- and Rs.2811/- respectively which the respondent was depositing every year and he also got receipts of the same with  next date of payment being mentioned on such receipts issued by the petitioner. After about 12 years of issuance of the policies, it was intimated by the petitioner that during an audit conducted in the office of the petitioner Corporation, it was found that the premium on the two policies in question should have been paid half yearly by the respondent but because of a typographical error, the premium payable was inadvertently mentioned as annual because of which, the respondent kept on paying the premium on the two policies annually. This had resulted in short recovery of premium on the two policies and hence the petitioner informed the respondent vide its letter dated 20.5.2006 about the typographical error and requested him to make payment of the 12 year difference of Rs.14,796/- and Rs.33,732/- on account of the premium while the petitioner waived the late fee keeping in view the circumstances of the case. Aggrieved by this action on the part of the petitioner and treating the demand for additional payment of premium as breach of the contract between the two parties, the respondent lodged a complaint with the District Consumer Forum praying for issuing directions to the petitioner Corporation to comply with the terms of contract of the two policies and also declaring that the petitioner has no right to go against the conditions of the contract after 12 years of the issuance of the policies and changing the premium amount from annual to half yearly payments. As stated above, the District Forum vide its order dated 20.3.2008 accepted the complaint in terms of the following order:-

“I.  Non applicant will not make any change in insurance policy no.370633541 and insurance policy no.370633544 without the consent of the applicant, not to make pressurize him for escaping himself from the liability of payment and according to insurance policy receive the premium from the applicant on deposit, do not raises any disturbance.

II.  The non applicant pay Rs.10,000/- (Rupees ten thousand only) to the applicant for suffering problem in regard to both policies and cost of the application of the applicant is assessed Rs.1,000/- which the non applicant make the payment, bear their expenses themselves.”

3.       The aforesaid order of the District Forum was confirmed by the State Commission vide its impugned order while dismissing the appeal of the petitioner against the same.

4.       We have heard Mr. Rajat Bhalla, Advocate, counsel for the petitioner and Mr. Vinod K. Shukla, Advocate appearing for the respondent. Supporting the action taken by the petitioner in asking the respondent to deposit the difference in the premium amount and to switch over to depositing the premium annually, the counsel for the petitioner submitted that the proposal in respect of the policies in question mentioned the mode of payment as six monthly and based on this proposal sent by the respondent, the calculation of the premium was disclosed on six monthly basis behind the documents but due to clerical mistake, the mode of payment was mentioned as yearly which resulted in respondent making the payments on annual basis. He further submitted that the petitioner did not lose any time after the mistake was found during the course of 12 yearly audit by the auditors of the Corporation and the demand for payment in question was raised immediately while waiving the delayed payment charges. He, therefore, contended that the mistake being inadvertent and the fresh demand in question being in accordance with the tables laid down for payment of premium on such policies, there was no deficiency on the part of the petitioners and the Fora below erred in ignoring the peculiar facts and circumstances of the case while rejecting the defence of the petitioners. Another limb of argument of the counsel for the petitioner was that as provided in section 64VB, no risk shall be assumed by the insurer unless and until the premium payable is received by him and since in the present case, the premium payable as per rules applicable to the policies in question had not been paid in full, it was essential for the respondent to make payment of the difference in the specified period as demanded by the petitioners and in this view of the matter also, the impugned order cannot be sustained in the eye of law. He summed up his arguments by submitting that the request for payment of the differential amount was merely by way of correction of an error which had crept in inadvertently and the same could neither be regarded as an additional demand of premium nor a deficiency in service on the part of the petitioner.

 5.      Per contra, learned counsel for the respondent argued that the respondent is an assistant lecturer and soon after receipt of the approved policy document, he started paying the premium on the two policies in accordance with the terms approved by the petitioner as reflected in the policy documents. He submitted that there is no allegation of any suppression of information against the respondent and even if the proposal mentioned half yearly payments of premium, the respondent had no option but to act according to the terms of the policy documents which are issued after due consideration of all the material aspects pertaining to the insurance contract. He argued that the total period under both the policies ranges from 16 to 18 years out of which the respondent has continued to pay annual premium on each of the two policies without any objection whatsoever from the side of the petitioner. In view of this, at this belated stage, the petitioner cannot unilaterally change the terms of the policy to the disadvantage of the respondent. He submitted that there is no breach of the principle  of utmost good faith on the part of the respondent and as such the ratio in the P.C. Chacko’s case cannot be made applicable to the present case. He further submitted that the facts and circumstances of the cases of Satya Deo Malviya Vs. LIC of India [1 (2004) CPJ 96 (NC)], LIC  Vs. Smt. S.M. Channabasamma [1991 1 SCC 357] and LIC Vs. Kashi Ram Sahu [IV (2003) CPJ 388] relied upon by learned counsel for the petitioner in his written arguments were different and hence the decision in those cases would not provide any comfort to the petitioner in the present case since the facts and circumstances are different. He further relied on the cases of LIC of India & Ors. Vs. Asha Goel & Anr. [(2001) 2 SCC 160] where the Apex Court has held that the duty of insured to disclose material facts continues up to execution of the contract of insurance. He submitted that in the present case, there is no allegation by the petitioner that there is any misstatement or misrepresentation or concealment on the part of the respondent in getting the policy. In the circumstances, there is no merit in the revision petition and the same is liable for dismissal.

6.       Having considered the rival contentions, we find that there is no dispute about the basic facts of the case. Undoubtedly, the contract of insurance is one of utmost good faith but there is no allegation of suppression, misstatement or misrepresentation on the part of the complainant/respondent while submitting his proposal for consideration and approval of the petitioner Corporation. Perusal of the policy documents indicates that there was no ambiguity about the mode of payment of premium under the two policies. In such a situation, even if there was a typographical mistake as claimed by the petitioner Corporation, the same was committed by the employees of the petitioner Corporation and it cannot be used to the disadvantage of the respondent / complainant by unilaterally changing the terms of the contract after a gap of 12 years. Undoubtedly, the petitioner Corporation is likely to suffer some under-recovery but in all fairness, the petitioner Corporation must bear it accepting the responsibility for mistake of its employees. Para 12 of Asha Goel’s case cited by counsel for the respondent reads as under:-

“Mere inaccuracy or falsity in respect of some recitals or items in the proposal is not sufficient.  The burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no question of the policy being avoided on ground of misstatement of facts.  The contracts of insurance including  the contract  of life  assurance  are  contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there  is  good  ground for rescission of the contract.   The duty to disclose material  facts  continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk  which may  take place between the proposal and its acceptance.”

7.       Keeping in view the essence of the ratio laid down by the Apex Court in Asha Goel’s case as also the peculiar facts the circumstances of this case, we do not find any illegality, material irregularity or jurisdictional error in the concurrent orders of the Fora below. The revision petition devoid of any substance stands dismissed with no order as to costs.

………………………………

(V.B. GUPTA, J)

PRESIDING MEMBER

………………………………

(SURESH CHANDRA)

MEMBER

SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION No. 2099 OF 2009

The Branch Manager                                                              Petitioner

Life Insurance Corporation

Civil Lines, Narsinghpur                                                                  

Gadarwara, Madhya Pradesh

Through its Regional Office

Jeevan Bharati Building

1, Connaught Place

New Delhi-110001

                   

Versus

Sunil Kumar  Paliwal                                                            Respondent

S/o Late Sh. Chetram Paliwal

Jagdish Ward, Gadarwara

Distt. Narsinghpur

Madhya Pradesh

 

BEFORE:

                 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER

Abovementioned order is sent for your kind perusal. If approved, this may be listed for pronouncement.

………………………………

(SURESH CHANDRA)

MEMBER

19.6.2012

HON’BLE MR. JUSTICE V.B. GUPTA,

PRESIDING MEMBER

Repair with duplicate parts - negligence of service -As per the report of 21.2.1992 from OP-2 (respondent No.2 in the present proceedings), the cause of the break down of the Engine was use of spurious CR bearings by OP-1/appellant during the course of overhaul of the Engine in 1990. The matter was therefore taken up with OP-1. Their representative allegedly visited the site in the third week of April 1992 and inspected the Engine. Two CR bearings out of the 12 replaced in 1990, were found to be without any mark of the manufacturer and therefore suspected to be spurious.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

                                               NEW DELHI                                              

FIRST APPEAL NO. 391 OF 2006

(Against the order dated 01.12.2005 in Complaint Case No. C/326/1993 of the State Commission, Uttar Pradesh )

M/s. Ghaziabad Engines & Machines (P) Ltd.,

Court Road, Muzaffar Nagar- 251001,

Through its Managing Director                            ……….Appellant

                                                                            

Versus

1. Advance Level Telecommunication

    Training Centre,

    Government of India Enclave,

    Ghaziabad- 201 002                                              

2. M/s. Bela Trading Engineers,

    Post Box No.1447, 1/1 Nicholeon Road,

    Kashmere Gate,

    New Delhi- 110 006

    Through its Managing Partner

3. M/s. Cumins Diesel Sales & Services (I) Ltd.,

    35-A/1/2, Erandawana,

    Pune- 411 038

    Through its General Manager (Services)  .........Respondents

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Appellant                :   Mr. Harpreet Singh, Advocate

For the Respondent No.1   :  Mr. C.B.N. Babu,  Advocate

For the Respondent No.2   :  NEMO

For the Respondent No.3   :  Mr. Ashish Wad, Advocate

               

 

 

PRONOUNCED ON:  03.07.2012     

ORDER

 

PER MR.VINAY KUMAR, MEMBER

          This appeal has been filed against the order of UP State Consumer Disputes Redressal Commission in Complaint Case No.C/326/1993. The State Commission has allowed the complaint of the Advance Level Telecommunication Training Centre and directed OP-1 & 3 (the appellant and respondent No.3, in the present proceedings) jointly and severally, to pay a sum of Rs.4,90,000/- together with litigation cost of Rs.3000/-, to the complainant ( respondent No.1 in the present proceedings). 

2.      The complainant is a government institution, set up for imparting training to officers of the Telecommunication Department in high tech areas. As stated, the complainant had six Cummins Diesel Engines of different capacities, for operating its air-conditioners and electronic exchange, together with the office and hostel buildings.  OP-1/Ghaziabad Engines and Machines (P) Ltd, had an annual maintenance contract which had expired on 31.7.1989.  The case of the complainant was that in January, 1990 one of the Cummins engines suffered a major break down.  The complainant sought the assistance of OP-1, as the AMC agency, until a few months ago. Appellant/OP-1 submitted their quotation for overhauling and repairing. The contract for repair was awarded to them with the condition that necessary parts would be purchased from the principals i.e. M/s. Cummins Diesel Sales and Services (P) Ltd.  A letter in this behalf was also issued to OP-1 on 30.3.1990.  In the process of overhaul and repair of the Engine, 12 out of 24 CR bearings were replaced.  The repaired Engine was commissioned on 6.7.1990 for which a repair bill of Rs.3,39,357/- was paid.   

3.      In January 1992 the Engine started emitting heavy smoke and stopped working.  OP-2/Bela Training Engineers, Kashmiri Gate, New Delhi were called in, as the AMC agency at that point of time.  The Engine was completely dismantled to find out the cause of the problem.  As per the report of 21.2.1992 from OP-2 (respondent No.2 in the present proceedings), the cause of the break down of the Engine was use of spurious CR bearings by OP-1/appellant during the course of overhaul of the Engine in 1990.  The matter was therefore taken up with OP-1.  Their representative allegedly visited the site in the third week of April 1992 and inspected the Engine.  Two CR bearings out of the 12 replaced in 1990, were found to be without any mark of the manufacturer and therefore suspected to be spurious.

4.      Respondent No.2/OP-2 refused to repair the Engine under the Annual Maintenance Contract on the ground that the seizure of the engine was on account of use of spurious spares by OP-1.  The Complainant therefore had to pay a bill of Rs.919048/- for the repair of the Engine by OP-2. It was in this background that the complainant had made the following prayer before the State Commission:-

  “(i)     To direct the Respondent No.1 to compensate the complainant to the extent of Rs.19,69,048/-.

(ii)          To direct the Respondent No.1 to pay interest @ 24% per   annum upon Rs.3 lakhs from the date of the filing of this complaint till the date of realization of the said amount.

(iii)        To pass a decree in terms of prayers (i) and (ii) above.

(iv)        To grant such relief against respondent Nos.2 & 3 as may be deemed fit.

(v)         To pass any other orders, directions as this Hon’ble State Commission may deem fit and proper in the facts and circumstances of the case.”

5.      We have carefully considered the material on record and heard Shri Harpreet Singh, Advocate for the appellant.  Advocates Sri C.B.N Babu for respondent No.1 and Sri Ashish Wad for respondent No.3 have also been heard.   It needs to be observed that through the entire course of the present proceedings between 21.8.2006 and 17.4.2012, respondent No.2/Ms.Bela Training Engineers has remained un-represented.  Therefore, R-2/OP-2 has been proceeded against ex-parte. Even before the State Commission, R-2/OP-2 had remained un-represented, though a Vakalatnama had been filed on its behalf, by an Advocate.  

6.      On the main issue of use of spurious CR bearings, the stand of appellant/OP-1 before the State Commission was that:-

“The contents of corresponding para 12 of the complaint are wrong and denied to the extent that although the said engine was repaired by the answering Respondent the faulty CR Bearings allegedly recovered from said engine were not those which were replaced by the answering Respondent and could not have been fitted in the engine at the time of the said repair.  In this regard it is submitted that 12 nos. of C.R. Bearings were replaced at the time of repair of the said engine.  It is pertinent to note that the replacement of the said bearings are always received in sealed containers from Respondent No.3 in sets of 12 bearings and are not marketed loose and as such it is not possible for two bearings (of one set of twelve) to be different from the other ten.  The answering Respondent being an authorized agent of the Respondent No.3 has always been receiving only genuine spares from it principal namely the Respondent No.3.  Further it needs to be submitted that the said spurious CR (connecting rod) bearings of 0.025 oversize configuration cannot be fitted in place of standard size bearings in such KCL (Kirloskar Cummins Ltd.) / CDS & S (Cummins Diesel Sales & Service (India) Limited) manufactured engines and as such this fact can be evidenced from the Investigation Report dated 15.09.1992 of the Respondent No.3 (Annexure VIII of the complaint).”

7.      It is also claimed by the appellant/OP-1 in the written response before the State Commission:-

          “That the said faulty C.R. Bearings could not have possibly been fitted by the answering Respondent as its principles (Respondent No.3 herein) are only manufacturing four configurations of C.R. Bearings namely 0.010”, 0.020”, 0.030” and 0.040”.”

         

8.      The rival contentions of the two parties, on the question of use of spurious bearings,  have been considered in detail by the State Commission.  The Commission has noted that the Engine was opened up immediately after the break down and the report of OP-2 along with the original materials were also sent.  Therefore, the State Commission did not find any merit in the argument that the machine should have been opened in the presence of the representatives of OP-1 and OP-3.  It also held that the complainant did his best by submitting the report of OP-2 on the spurious nature of the bearings and even sent the concerned material to OP-3 for physical examination.  There is no mention in the report of OP-3 that those materials were foreign and were not supplied by him. 

9.      We are in complete agreement with the appreciation of the evidence on this point. The appellant cannot derive any benefit by merely claiming that oversize rings could not have been fitted as the fact remains that the Generator had already functioned, after the overhaul in 1990, for more than one and half years with those bearings, before the break down in 1992. 

10.    Further, the above contention of the appellant that CR bearings of faulty dimension could not have been fitted by OP-1 as the principal i.e. OP-3 was manufacturing only four configurations of CR bearings namely,  0.010,” 0.020”, 0.030” and 0.040, cannot be accepted as proof in itself that no spurious bearings have been fitted. During the course of the argument, learned counsel for the appellant claimed that CR bearings of requisite specification only had actually been obtained from OP-3 and therefore there was no question of fitting any spurious bearings.  He however, conceded that no bills of purchase of such bearings from OP-3 had been produced before the State Commission. 

11.    Another contention raised by the appellant is that the order of the State Commission is vitiated for non-observation of the Condition under Section 13 (1) (c) of the Consumer Protection Act, which requires assessment of the expert agency.  We find no merit in this contention as the investigation report of 15.9.1992, produced on behalf of OP-3 before the State Commission, itself shows that two of the 12 bearings did not have the marking of the manufacturer. As per this report, these two bearings also did not have the copper layer and were different in appearance from the other bearings. 

12.    From the above, it transpires that the OPs had completely failed to lead any evidence before the State Commission to explain as to why two of the 12 bearings were not of Cummins manufacture.  This has to be viewed in the background of the pre-repair condition imposed by the complainant in their letter of 30.3.1990 in which they had clearly asked the appellant/OP-1 to procure the necessary spares, from their principals M/s. Cummins Diesels Sales and Service (I) Ltd., Poona. The State Commission has therefore, rightly fixed responsibility on OP-1 and OP-3.      

13.    In view of the details above, we are of the view that the impugned order is based on correct appreciation of the evidence before the State Commission. We find no grounds to interfere with the same. The appeal is therefore dismissed with no orders as to costs.

.………………Sd/-…………

(V.B.GUPTA,J.)

PRESIDING MEMBER

………………Sd/-………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-

Negligence - The facts of this case speak for themselves. The patient was admitted on 5.12.2004. His several Tests were conducted. The petitioner could not show to the Commission that the patient had already got the liver injury before his admission into his hospital. It is not denied that the petitioner inserted pipe on 5.12.2004 and again on 13.12.2004 after removing the old pipe. The condition of patient deteriorated with the insertion of second pipe. As a matter of fact, it was a case of accident and the physician should not have taken a step forward without consulting a surgeon.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 REVISION PETITION NO.  1543  OF  2012

 (Against the order dated 21.10.2011 in Appeal No. 874/2008

of the State Consumer Disputes Redressal Commission, Haryana, Panchkula)

                       

                               

Dr. Rajiv Gupta (Incharge)

Amrat Dhara Hospital,

Chaura Bazar, Karnal

Haryana

                                            

Versus

1. Sukhbir Singh

    Son of Sh. Tula Ram

    Village Subhri

    Post Office Subhri

    Tehsil and Distric Karnal

2.  The New India Assurance Co. Ltd.

      G.T. Road, Karnal

BEFORE:

  HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

  HON’BLE MR. SURESH CHANDRA, MEMBER

       

For the Petitioner                   :                   Mr. Sagar Saxena, Advocate

 

 

Pronounced on : 3^rd July, 2012

 

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.     The facts germane to the present case are these.  The complainant Sukhbir Singh suffered injuries on the right side of his abdomen on his person in a roadside accident on 05.12.2004, while he was driving his motorcycle.  He was admitted in the hospital of Dr. Rajiv Gupta, Incharge Amrat Dhara Hospital, who is the petitioner in this case.  The complainant remained admitted from 05.12.2004 to 18.12.2004.  Many tests were conducted and the complainant was kept under I.C.U.  On 05.12.2004, Dr. Rajiv Gupta inserted a pipe on the right side of the back below the scapular region of the complainant.  Ultrasound and X-rays were conducted on each and every day. On 13^th December 2004, Dr. Rajiv Gupta conducted C.T. Scan of the complainant from Chitra City Scan. Dr. Rajiv Gupta removed the old pipe from the body of the complainant and inserted a new pipe in the body of the complainant.  The liver of the complainant got damaged due to wrong insertion of a pipe (GTD) in his back and due to that his condition deteriorated. This fact was never disclosed and it was held back.  On 14.12.2004, the condition of the complainant started further deteriorating and he felt uncomfortable.  On 18.12.2004, Dr. Rajiv Gupta referred the complainant to P.G.I. Chandigarh.  The complainant remained admitted in PGI, Chandigarh from 18.12.2004 to 12.02.2005. The main grouse of the complainant is that he was never treated properly by the petitioner Dr. Rajiv Gupta.  It is transpired that Dr. Rajiv Gupta is not a surgeon.  The complainant had to spend a sum of Rs. 58,000/- on his treatment including various tests and medicines.  He had to spend Rs. 2,00,000/- in PGI, Chandigarh. 

2.        Petitioner denied all these allegations in his written statement.  It was alleged that the complainant wants to blackmail Dr. Rajiv Gupta who is running this hospital for the last eighteen years and is the most prestigious hospital for heart and chest diseases.  He is gold medallist and did MBBS and MD from A.I.I.M.S.  He remained Senior resident in the casualty of A.I.I.M.S.  Complainant was in a serious condition that is why as was shifted to petitioner’s hospital from Tagor hospital.  He was attended by a full team.  Tests revealed that the complainant was having fracture of ribs on the right side alongwith traumatic hemothroax with respiratory distress and there was a collection of blood in the abdomen.  The patient was collapsing, therefore, the idea of sending him to PGI was abandoned.  The patient did not have injury on his liver.

3.     The District Forum dismissed the complaint filed by the complainant.  Appeal was preferred before the State Commission.  The State Commission awarded a sum of Rs. 58,000/- and Rs. 1,00,000/- as compensation, which was to carry interest @ 9% from the date of order passed by it, on 21.10.2011 till its realization together with an amount of Rs. 5000/- as cost of litigation.  The State Commission also directed that the order be complied with within 30 days from the receipt of the order, failing which, the total amount shall carry interest @ 12% from the date of filing the complaint i.e. dated 23.03.2005.

4.     We have heard the counsel for the petitioner. The learned counsel for the petitioner reiterated the submissions made in the written statement.  It was argued that the petitioner is a competent doctor and negligence cannot be attributed on his part.  It was also argued that first of all the patient/complainant was taken to Tagore Hospital, Karnal, where his tests were done, the doctors declared him to be in a serious condition and refused to admit him.  Thereafter, the patient came to the hospital of petitioner.  It was further submitted that the patient was brought in a serious condition.  His BP had fallen to 84 mm and was not fully conscious.  The patient was examined by a team of doctors and the life saving measures were taken. It is contended that the option of shifting the patient to PGI, Chandigarh, was also discussed but it had to be abandoned, as it was clear that the patient couldn’t survive more than a few minutes, unless this treatment was done. Dr. Arun Goyal, M.D. (Radiology) assisted Dr. Rajiv Gupta.  Dr. K.K. Seth, M.S. also assisted him.  Dr. Parveen Goyal, Surgeon was also consulted on 17.12.2004.  On his opinion, the patient was advised to shift to PGI, Chandigarh.

5.        Learned counsel for the petitioner has cited two authorities in support of his case.  The first is reported in “Jacob Mathew Versus State of Punjab and Another” [(2005) 6 Supreme Court Cases 1].  This is an authority under the Criminal Law as the Hon’ble Judges were dealing with a case under Section 304A I.P.C.  It was however, held:-

“18.In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category  of persons professing some special skill or skilled persons generally.  Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task.  Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution.  He does not assure his client of the result.  A lawyer does not tell his client that the client shall win the case in all circumstances.  A physician would not assure the patient of full recovery in every case.  A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.  The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.  This is all what the person approaching the professional can expect.  Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession.  It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.  In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.

21. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in  accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

        Deviation from normal practice is not necessarily evidence of negligence.  To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence.

In the opinion of Lord Denning, as expressed in Hucks v. Cole, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another.  A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

6.     The second authority is reported in Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others 2010 (3) SCC 480 wherein it was held:-

Lord Atkin in his speech in Andrews v. Director of Public Prosecutions stated, "….Simple lack of care -- such as will constitute civil liability is not enough; for purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. Lord Porter said in his speech in the same case –

"A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.

The aforementioned statement of law in Andrews's case (supra) has been noted with approval by this court in Syad Akbar v. State of Karnataka. This court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. The court opined that

28…there is a marked difference as to the effect of evidence, viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence.   While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

      I.    Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

      II.   Negligence is an essential ingredient of the             offence. The negligence to be established by the prosecution must be culpable or gross and                                                               not the negligence merely based upon an error of judgment.

III.   The medical professional is expected to bring a        reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.    A medical practitioner would be liable only where his conduct fell below that of the standards of a    reasonably   competent practitioner in his field.

V.     In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

7.     The authorities cited by the counsel for the petitioner rather support the case of opposition.  The prime reason which led the State Commission to reverse the order passed by the District Court is that this is an indisputable fact that Dr. Rajiv Gupta petitioner is not a surgeon.  There is no evidence, or the name to show that services of any surgeon were actually pressed into service.  No affidavit of any surgeon saw the light of the day.  The apex court has laid emphasis on competence of the doctor.  The petitioner is not even a surgeon, what to talk of competence.  The petitioner has transgressed the ambit of his competence.

8.     The Tagore Hospital in a better way refused to admit such a serious patient.  This fact was known to the petitioner.  He should have referred the patient to PGI Chandigarh and if there was emergency to the Local Civil Hospital where there is always a surgeon.

9.     The facts of this case speak for themselves.  The patient was admitted on 5.12.2004.  His several Tests were conducted.  The petitioner could not show to the Commission that the patient had already got the liver injury before his admission into his hospital.  It is not denied that the petitioner inserted pipe on 5.12.2004 and again on 13.12.2004 after removing the old pipe.  The condition of patient deteriorated with the insertion of second pipe.  As a matter of fact, it was a case of accident and the physician should not have taken a step forward without consulting a surgeon.

10.        Moreover, the State Commission was pleased to observe:-

“The complainant has placed on record the discharge and follows up card issued by the opposite party.  To substantiate his case the complainant has placed on record, the discharge card Ex as C-104 issued by the PGI Chandiagrh, in which injury of liver is mentioned. There is one more documents Ex.O-19 which has been issued by the Mdical Superintendent Nehru Hospital PGI Chandigarh to Dr. S.K. Katyal (Genral Surgeon) General Hospital Karnal in response to his letter dt. 08.04.2005 and 29.04.2005.  This letter is neither on any letter head of the Hospital nor does it bear any stamp on it.  This letter however confirms that in operation there was necrosed and contused segment VII, VIII & part of the segment V of liver.  It also confirms that there was rent in Rt. Dome of diaphragm with herniation of Rt transverse colon.  The opposite party no.1 has admitted that the discharge from the tube was continuous and there was mild jaundice.  It has also been confirmed by the opposite party no.1 that the condition of the complainant was deteriorating.  This shows that the liver was damaged during the insertion of the tune for the second time when the old tube was changed.  This clearly shows that the opposite party while inserting the tube on 13.12.2004 the liver was damaged due to which the condition of the complainant went from bad to worse.  Ex. O-19 clearly confirms this fact.”

11.        Affidavits of Shri K.K. Seth general surgeon, who examined the patient on 7.12.2004 and Dr. Parveen Goyal another surgeon who visited the patient on 17.12.2004 and who opined that the complainant should be shifted to PGI Chandigarh, were never placed on the record.  The admitted visit of Dr. Parveen Goyal clearly goes to show there was something amiss in the treatment of the complainant.  The complainant was left further to suffer for a period of about two months. 

12.          It is interesting to note that in its written statement, the petitioner averred,

“To look for any associated abdominal or liver injury, the patient underwent repeated ultrasound examination by Dr. Arun Goyal (MD Radiology) (on 5/12, 6/12, 8/12, 10/12, 12/12).  None of these picked up any evidence of liver injury.  X-Ray of chest was done several times and all X-Rays revealed fractures of ribs and good position of the tube

The consultation of Dr. K. K. Seth MS, General Surgeon was taken on 7/12/04.  He examined the patient and conducted needle aspiration in the abdomen to look for any liver injury and advised that the same treatment should continue in Hospital Amritdhara.”

“….. However in view of the pain and continuing discharge form the chest tube strict vigil was maintained and when the US done on 13.12.04 showed small amount of fluid in the abdomen, a CT scan of the patient was obtained on the same day which also did not pick up any injury to the diaphragm or the liver.  Dr. KK Seth was consulted again and he again did a needle aspiration of the abdomen which did not reveal any significant result.  Therefore he advised that no surgical intervention was warranted and conservative treatment was continued.”

“In view of the continuing discharge from the tube and the presence of mild jaundice, another surgeon Dr. Parveen Garg was consulted on 17.12.04.  His opinion was that the general condition of the patient was fair and that the tube was in proper position but as the tests being done in Karnal had not revealed the true cause of the continuing aspiration through the tube, further tests like endoscopy could be done from a higher institute.  The situation was discussed with the relatives and the patient and it was decided to shift the patient to PGI Chandigarh on the next day.”

13. Falsehood of the above said averments stand proved by the significant document issued by the PGI, dated 30.5.2005, which reads as follows:-

“Subject:- Regarding treatment of Shri Sukhbir Singh.

Reference your letter No. Steno 05/1376 dated 8.4.05 and Steno 05/1634 dated 29.4.2005 on the subject cited above.

As desired vide letter under reference the comments are Dr. Rajesh Gupta, Department of General Surgery, PGI, Chandigarh are as under:-

1. Ultrasound examination finding at the time of admission No. 1047 dated 18.12.2004 – contusion of the right lobe of liver.

At operation, there was neorosed and contused segment VII, VIII and part of segment V of liver.  There was rent in the right dome of diaphragm with herniation of right transverse colon.  The intercostals tube was lying in situ.

The chest tube was lying insitu.  Such extensive necrosis of liver cannot be explained by intercostals tube insertion.

Sd/-     

Superintendent (N)

For Medical Superintendent

Nehru Hospital, PGI,

Chandigarh”

14.   The Revision petition is sans merit and deserves dismissal which we hereby direct.     

…………………..………..

     (J. M. MALIK, J)

   PRESIDING MEMBER

  ……………….……………

                                                        (SURESH CHANDRA)

                                                                            MEMBER

Jr/