REVISION PETITION NO. 2133 OF 2012 M/S. BADYAL ADVANCED BONE JOINT & CHILDREN HOSPITAL & ANR. Versus HARNEK SINGH THROUGH LRs. & ORS. DECIDED BY THE HON’BLE NCDRC, NEW DELHI ON 20.12.2019
Facts: On 06.02.2005, one Sandeep and Rajwinder were going on motorcycle and met with an accident. Both injured were brought to the Badyal Hospital. Complainants are father and mother of Sandeep. The father Harnek Singh expired and has been substituted with LRs Mohinder Kaur wife and son Satbir Singh. Opposite party No.2 in the complaint Dr. Rajesh Badyal directed to deposit Rs.20,000/- for treatment of Sandeep. Opposite party No.2 forcibly shifted Sandeep to other hospital and on the way, he died. Rajwinder was given treatment after getting advance from his parents and then shifted to Satluj hospital where he remained upto 1.3.2005 and he survived. It has been alleged that due to negligence and non-performance of duty by the opposite parties Sandeep died. Complainants filed complaint before the District Forum, Bhatinda which was dismissed. The State Commission in appeal passed the following order on 29.02.2012:-
“34. Keeping in view the above discussion, Rs.15 lacs will be just and reasonable as lumpsum compensation. Respondents No.1 & 2 were insured with respondent No.3 for Rs.10 lacs, as such, the liability of respondent No.3 is to the extent of Rs.10 lacs although jointly and severally with respondents No.1 & 2. The remaining amount of Rs.5 lacs will be paid by respondents No.1 & 2 to the appellants. The above said amount be paid to the appellants within one month from the receipt of copy of the order.”
Defense: The hospital and the doctor stated that Sandeep was seriously injured in the accident and proper facilities of treatment were not available in the hospital owned by opposite party No.2 and therefore, Sandeep was not admitted in the hospital and was referred to a higher hospital where all facilities were available. As the case of Rajwinder was manageable with the facilities available at the hospital, he was admitted and given treatment and then shifted to higher hospital. The opposite party No.1 and opposite party No.2 do not have any privity of contract with the complainants as no money has been either paid by the complainants to the opposite party Nos.1 & 2 nor promised to pay any amount to the opposite party Nos.1 & 2. Hence, the complainants cannot be considered as consumer qua the opposite party Nos.1 & 2 particularly, in the light of the fact that no service was provided to the son of the complainants or to the complainants by the opposite party Nos.1 & 2.
Observations: Though, it has been alleged that the treatment of the other injured Rajwinder was taken up by the opposite parties as the parents of Rajwinder gave Rs.20,000/- to start the treatment, no such admission either by Rajwinder or his parents has been filed, nor any receipt given by the opposite parties to Rajwinder has been produced by the complainants. As both the boys Sandeep and Rajwinder were injured and the opposite parties gave treatment to only Rajwinder and did not give any treatment to Sandeep, there has to be some reason for the same. When the condition of Sandeep was so critical that he died on the way to other higher hospital, it was the duty of the opposite party hospital and the doctor to have given some initial treatment so that his condition could have stabilised and then he could have been shifted to another hospital. The name of the opposite party hospital is ‘Badyal Advance Bone Joint & Children Hospital’ and the name of the hospital itself suggests that it was an advanced centre for treatment in respect of the bones. Thus, it cannot be believed that the hospital does not have the facility to give the initial treatment to an injured. It is the duty of the hospital and the doctor to treat the injured if the same is brought to the hospital after accident. The State Commission has rightly relied on the judgment of the Hon’ble Supreme Court in Pt. Parmanand Katara Vs. Union of India and others, wherein the Apex Court has held the following:- “a scooterist was knocked down by a speeding car. Seeing the profusely bleed- ing scooterist, a person who was on the road picked up the injured and took him to the nearest hospital. The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital located some 20 kilometers away authorised to handle medico-legal cases. The samaritan carried the victim. But before he reached the hospital the patient succumbed to his injuries. In that set of circumstances in a petition under Article 32 the Court pertinently observed that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as a resuurection is beyond the capacity of man. Therefore, injured brought for medical treatment, should be instantaneously given medical aid to preserve life.”
Held: Opposite party hospital and the doctor refused to treat Sandeep, who was brought to that hospital after injury in a road accident and it was the duty of the doctor to have treated him atleast initially. Outright rejection of treatment cannot be supported by any standard, which is clear in the above observations of the Hon’ble Supreme Court. It is clear that if a person promises to pay the consideration for hiring or availing any service, he shall also fall in the definition of consumer, therefore, even if anything was not paid to the opposite parties by the complainants, the complainants will fall in the category of consumer. Coming to the question of compensation, as observed above that though it has been alleged that parents of Rajwinder paid Rs.20,000/- for his treatment and then treatment was started, however, no such proof has been filed in this regard. There is no statement given by the parents of Rawinder or any receipt for Rs.20,000/- has been filed, therefore, this allegation is not established, however, the opposite parties are guilty of deficiency in service for not treating Sandeep, who was an injured person brought before them for treatment, in the light of the judgment of the Hon’ble Supreme Court in Pt.
Parmanand Katara Vs. Union of India and others (supra). In these circumstances, a compensation of Rs.15,00,000/- awarded by the State Commission seems on a higher side and the same is reduced to Rs.10,00,000/- (rupees ten lakhs) to be paid to the complainants.