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2017 DIGILAW 354 (JK)

A. S. C. O. M. S v. Shaheen Akhter

2017-07-17

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : In this intra court appeal, the appellants have called in question the validity of the order dated 28.11.2014 passed by the J & K State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the Commission’), by which the claim filed by the respondent has been allowed and the appellants herein have been directed to make payment of Rs.85,000/- and a consolidated compensation of Rs.50,000/- on account of harassment, agony and litigation charges within a period of four weeks. In order to appreciate the appellants’ challenge to the impugned order passed by the Commission, few facts need mention which are stated infra. 2. On advise of appellant No.2, on 29.12.2008, the respondent was referred for Gall bladder surgery which could not be done on account of difficulty during the administration of Anaesthesia, as a result of which the respondent suffered intubation resulting in breakage of the incisors of her upper jaw during the procedure which was conducted by appellant No.2. The respondent, thereupon, filed a complaint against the appellants for recovery of amount of Rs.85,000/- on the ground that she was subjected to medical negligence. The aforesaid claim was resisted on behalf of the appellant No.2 on the ground that as a Surgeon, he would have performed the operation but on account of anaesthesia problem, no such operation was conducted and therefore, no negligence can be attributed to him. The appellant No.2, inter alia, contested the claim of the respondent on the ground that during the course of intubation for the purpose of administering the anaesthesia, certain complications arose which had overcome by Endotracheal Intubation during which the respondent suffered injury to her front incisor which is normal feature in such cases and no medical negligence can be attributed on the part of the appellant No.2. 3. The Commission while impugned order dated 18.11.2014 inter alia held that the Standard Procedures prescribed with regard to administration of anaesthesia as per the Standard Safeguards prescribed were taken in case of the respondent. Therefore, the respondent suffered an agony and discomfort due to breakage and fracture of her incisors. Accordingly, the Commission awarded the compensation as is stated supra. In the aforesaid factual background, this appeal has been filed. 4. Learned counsel for the appellants while inviting the attention of this court to the evidence of Dr. Therefore, the respondent suffered an agony and discomfort due to breakage and fracture of her incisors. Accordingly, the Commission awarded the compensation as is stated supra. In the aforesaid factual background, this appeal has been filed. 4. Learned counsel for the appellants while inviting the attention of this court to the evidence of Dr. Sudershan Gupta as well as the opinion given by the Principal, Government Medical College, Jammu submitted that from the perusal of evidence of Dr. Sudershan Gupta as well as opinion given by the Principal, Government Medical College, Jammu, it was evident that the Standard Procedural Safeguards for administration of anaesthesia were followed. However, the aforesaid evidence which had a material bearing on the issue involved before the Commission was not taken into account by the Commission. On the other hand, learned counsel for the respondent has supported the order passed by the Commission and has pointed out that the respondent was subjected to mental agony and suffering on account of gross medical negligence on behalf of the appellants. 5. We have considered the submissions made by learned counsel for the parties and have perused the order passed by the Commission. From perusal of the order of the Commission, we find that after quoting the Standard Safeguards prescribed to be observed during the administration of anaesthesia, the Commission has held that the procedural safeguards were followed in case of the respondent. However, while recording the aforesaid finding, the Commission has not taken into account the evidence of Dr. Sudershan Gupta as well as the opinion given by the Principal, Government Medical College, Jammu. Thus, the finding with regard to medical negligence has been recorded by the Commission in ignorance of the material evidence available on record. Therefore, the order passed by the Commission cannot be sustained in the eye of law. It is accordingly, quashed. The Commission is directed to consider the evidence of Dr. Sudershan Gupta as well as the Principal, Government Medical College, Jammu as well as other material evidence on record and thereafter decide the matter in accordance with law by a speaking order. The Commission is directed to decide the matter within a period of three months from the date of receipt of certified copy of the order passed today. 6. With the aforesaid directions, the appeal stands disposed of, along with connected MPs.