MANU/CF/0264/2024

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
Revision Petition No. 2999 of 2017
Decided On: 29.04.2024
Gopal Aggarwal Vs. Sarvodya Hospital and Ors.
Hon'ble Judges/Coram:
Sudip Ahluwalia, J. (Presiding Member) and Dr. Inder Jit Singh, Member
Counsels:
For Appellant/Petitioner/Plaintiff: K.G. Sharma, Harsh Kumar and Anuj Kumar, Advocates
For Respondents/Defendant: J.P.N. Shahi, S.N. Parashar, Salil Paul, Sahil Paul, Animesh
Singh and Shubham Budhiraja, Advocates
Case Category:
MATTERS RELATING TO CONSUMER PROTECTION
ORDER
Dr. Inder Jit Singh, Member
1 . The present Revision Petition (RP) has been filed by the Petitioner against
Respondents as detailed above, under section 21 of Consumer Protection Act 1986,
against the order dated 08.09.2016 of the State Consumer Disputes Redressal
Commission, Haryana (hereinafter referred to as the 'State Commission'), in First Appeal
(FA) No. 1120/2015 in which order dated 19.10.2015 of District Consumer Disputes
Redressal Forum, Faridabad (hereinafter referred to as District Forum) in Consumer
Complaint (CC) No. 515/2008 was challenged, inter alia praying for setting aside the
impugned order dated 08.09.2016 passed by the State Commission in FA/1120/2015
and for restoring the order dated 19.10.2015 of the District Forum passed in 515/2008.
2 . While the Revision Petitioner (hereinafter also referred to as Complainant) was
Respondent-1 before the State Commission and Complainant before the District Forum,
the Respondents-1 to 3 (hereinafter also referred to as OPs) were Appellants before the
State Commission and Opposite Parties-1 to 3 before the State Commission and
Respondents- 4 & 5 were Respondents-2 & 3 before the State Commission in
FA/1120/2015 and Opposite Parties- 4 & 5 before the District Forum in Consumer
Complaint No. 515/2008.
3 . Notice on RP as well as on application for condonation of delay was issued to the
Respondent(s) on 19.09.2018. Parties filed Written Arguments on 21.02.2023
(Petitioner), 08.06.2023 (Respondent No. 1) 25.11.2019 (Respondent No. 4) and on
09.06.2023 (Respondent No. 5) respectively. Written arguments not filed by
Respondents 2 & 3. No reply/response/objection to the application for condonation of
delay was filed by the Respondents.
4 . Brief facts of the case, as emerged from the RP, Order of the State Commission,
Order of the District Commission and other case records are that:

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 Petitioner's wife Vananda (hereinafter also referred to as the patient), who was
having pregnancy of six months went to Respondent No. 1 hospital on
30/31.05.2008 at 2-32 A.M. due to abdominal pain. She was admitted in the
hospital of Respondent-1, where the doctors told that baby foetus had no heart
sound so an emergency operation/surgery was required to save life of
Petitioner's wife. Respondent No. 2 along with some other doctors aborted the
baby foetus but the doctors of Respondent No. 1's hospital did not allow the
petitioner and other relatives to meet his wife on the pretext that she was in
intensive care unit. After 11 hours of operation, the patient was referred to
higher centre for further investigations. On the advise of Respondents, the
Petitioner's wife was admitted in Safdarjung Hospital, New Delhi on
31.05.2008, where she died on 01.06.2008 at 6-00 A.M. The Petitioner alleges
that due to delay in referring his wife and the cause of her death was excess
bleeding, shock as well as haemorrhage and doctors of Respondent 1's were
negligent in treating his wife and kept her condition in dark due to greed of
money and doctors were also negligent in mentioning some wrong facts in the
discharge summary deliberately. Though treatment card along with regular
check-up record of Civil Hospital, Ballabgarh were handed over to the doctors
at Respondent-1's hospital but not mentioning the same and also not described
her exact post-operative condition besides date and time of discharge of patient
from Respondent-1's hospital. The doctors acted in violation of professional
ethics and moral duties to fulfil their commercial interest as well as inflated the
bill because they ought to have avoided surgery of Petitioner's wife as they
lacked infrastructure required in such like cases resulting into the death of
patient at a very young age of 30 years leaving behind a child. No qualified
surgeon in the hospital of Respondent-1 remained present with her after the
said operation to check the post- operative complications but on 31.05.2008
respondent no.1 charged Rs. 26,280/- from the petitioner for his wife's
operation and treatment. Hence, the Petitioner filed complaint before District
Forum and prayed for directing Respondents to pay Rs. 10,00,000/- as
compensation along with interest @ 12% p.a. from the date of filing of
complaint before the District Forum.
5 . Vide Order dated 19.10.2015, in the CC No. 515/2008 the District Commission has
allowed the complaint and directed the OPs 1 to 3 jointly and severally to pay a lump
sum compensation of Rs. 6,00,000/- to the complainant within 30 days from the date of
receipt of order, failing which, the said amount shall carry interest @ 9% p.a. from the
date of filing of the complaint till realization. Aggrieved by the said Order dated
19.10.2015 of District Forum, OPs-1 to 3 appealed in State Commission and the State
Commission vide order dated 08.09.2016 allowed FA No. 1120/2015 set aside the order
passed by the District Forum and dismissed the complaint.
6 . The Petitioner has filed an application for condonation of delay. In view of the
reasons given in the application for condonation of delay and reasons adduced during
hearing, the delay in filing the Revision Petition is condoned. IA/14361/2017 stands
disposed of.
7. Petitioner has challenged the said Order dated 08.09.2016 of the State Commission
mainly on following grounds:-
(i) The State Commission failed to consider the brief facts of the case which are
matter of record. The State Commission failed to consider this fact that the
Petitioner's wife died due to negligence of the doctors of the respondent no.1.
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 The State Commission failed to consider the facts that the doctors of Safdarjung
Hospital, New Delhi, disclosed to the Petitioner that it is a case of medical
negligence and the cause of death of Smt. Vandana is excess bleeding, shock
and hemorrhage.
(ii) The State Commission failed to consider the fact that the matter was also
reported to the police. The Petitioner served a legal notice dated 07.08.2015
upon the Respondents, which was duly received by the respondents but did not
send any reply. The State Commission failed to consider the fact that the
respondents take the defense in their written statement before the District
Forum on totally wrong submission which are totally contradictory from the
documentary evidence/proof filed before the District forum.
(iii) The State Commission failed to consider the fact that the doctors of the
respondent no.1 in the greed of money kept in dark the husband and other
family members of the deceased. The State Commission failed to consider the
fact that the doctors of the respondent no. 1 made the false statements before
the District Forum. The State Commission failed to consider the fact that the
respondents failed to prove their stand before the District Forum. The State
Commission failed to consider this fact that the petitioner has proved his case
before the District Forum.
(iv) The order passed by the State Commission is based on conjectures and
surmises, perverse, bad in law and as such is liable to be set aside. The State
Commission has failed to appreciate the facts, documents and legal proposition
in their true perspective. The State Commission passed the order in a
prejudicial manner and has totally disbelieved the defense put forth by the
petitioner/complainant. The order passed by the State Commission is not based
upon the correct appreciation of pleadings and documents on record and has
been passed in total disregard to the law laid down by the various High Courts
as well as by the Apex Court from time to time.
(v) The State Commission has acted in exercise of its jurisdiction illegally and
with material irregularity. If such an order is allowed to stand, it would
occasion a failure and justice and cause irreparable loss and injury to the
petitioner.
8 . Heard counsels of both sides. Contentions/pleas of the parties, on various issues
raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing,
are summed up below.
8.1. In addition to the averments made under the grounds of Revision Petition
(para 7), the Petitioner contended that the State Commission while passing the
impugned order has erred in setting aside the Order dated 19.10.2015 passed
by the District Forum Faridabad in CC/515/2008, on the single ground that
there was no delay in referring the patient to the higher medical centre
(Safdarjung Hospital, Delhi) wrongly observing that "She was brought at OP
No. 1 at about 2.32 AM and necessary action was taken at 3.15 AM. She was
admitted at Safdarjung Hospital at about 6.00 AM. It can not be opined that she
was kept unnecessarily at OP No. 1 and there was delay in reference. So it can
not be presumed that there was any failure on the part of the OP No. 1
regarding transfer of patient to Safdarjung Hospital." It is evident that the State
Commission has presumed that the patient was not at all retained in Sarvodaya

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 Hospital in the post-operative period and was immediately transferred to
Safdarjung Hospital after doing the surgery and the patient was admitted at 6
AM, i.e., within three hours of doing the surgery, a presumption which is not
correct and is contrary to the facts available on record. The State Commission
has also not at all discussed the merits of the case in the First Appeal and has
passed the impugned order on the basis of assumptions and presumptions only,
which are erroneous and based on wrong facts. After 11 hours of the said
surgery/operation, the doctors of R-1 hospital referred the patient to higher
centre for further investigation and management. The R-1 hospital did not
provide any ambulance nor arranged the same through Safdarjung Hospital
where the patient was being referred, nor any doctor was deputed to
accompany the patient to get her admitted in Safdarjung Hospital. The doctors
at Safdarjung Hospital tried their best to save the patient, but she died at about
6 AM on 01.06.2008. The doctors at Safdarjung Hospital had disclosed orally to
the complainant that the doctors at Sarvodaya Hospital committed negligence in
not referring the patient early and retaining the patient in R-1 hospital and
causing delay in referring the patient and told that the cause of death of the
patient was excess bleeding, shock and haemorrhage. The doctors at Sarvodaya
Hospital were negligent in giving treatment to the complainant's wife and kept
the attendants in dark about the true condition of the patient. The complainant
had given all treatment record of the patient in Civil Hospital to the doctors at
Sarvodaya Hospital, but the doctors of R-1 have wrongly and deliberately
mentioned wrong and false facts in the Discharge Summary of the patient that
no records are available. The R-1 hospital should not have admitted the patient,
if they were not equipped with facilities or did not have infrastructure to handle
and manage the case. There was no qualified doctor to look after or provide
care to the patient in the immediate post-operative period. The complainant
paid the Bill amount Rs. 26280/- and only thereafter the patient was discharged
from the hospital. The District Forum partly allowed the complaint holding that
there is deficiency on the part of the OPs as no efforts were made in
transferring the critical patient to Safdarjung Hospital, no ambulance was
provided or arranged by the hospital or any of its staff to carry the critical
patient who was in Hypovolemic shock whereas it was the duty of the R-1
hospital to transfer the patient to referral hospital and a precious life was lost
due to deficiency on the part of the OPs and the OPs are liable to compensate
the complainant. The State Commission erred in presuming that the patient was
admitted at 6 am after the surgery was done at 3.15 am on 31.05.2008 and
thus it is wrong to opine that there was delay on the part of the respondents in
referring the patient to higher medical centre. The State Commission erred in
not appreciating the admitted facts on record that the patient was discharged at
1.30 pm on 31.05.2008 and was admitted in Safdarjung Hospital at 4.50 pm.
The State Commission has wrongly presumed that the patient was admitted at 6
am in Safdarjung Hospital, i.e., immediately 3 hours after the surgery in R-1
hospital. The patient was discharged after retention of eleven hours of the
surgery. The order of the State Commission, by any stretch of imagination can
not withstand the legal scrutiny as the error is apparent on the face of the
facts/order. It is further contended that the condition of the Patient at the time
of admission in R-1 hospital was reported at about 2 AM on 31.05.2008 at R- 1
hospital with complaint of severe bleeding with prev LSCS with pregnancy 7
months with pain abdomen (G2P1). No any other history. BP-130/90, Afebrile,
CVS/CNS - NAD, P/A 26 weeks pre term with No Heart Rate. She was diagnosed
Abruptio Placenta with severe anemia and LSCS was advised. But the Discharge

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 Summary wrongly shows that the patient suffered severe pre-eclampsia, which
is not supported by any of the initially prepared documents like History Sheet of
the patient and examination by doctor at the time of admission. The treatment
record of the patient for her treatment in R-1 hospital reveals that the
Consultant under whose care the patient was admitted was Dr. Anjali Gupta
with diagnosis of Abruptio Placenta with severe anemia and consent for surgery
was given in the name of Dr. Anjali only and not Dr. Shalini. The name of
Dr.Shalini nowhere reflects in the Discharge Summary filed by the respondents
and it mentions only Dr. Anjali Gupta as the Consultant. In the Anaesthesia
Records also, it is apparent that the name of Dr. Shalini has been added
subsequently. The fact remains that at no stage before the surgery, the R-1
hospital told to the complainant/ patient that the surgery would be done by Dr.
Shalini and that Dr. Anjali was not competent surgeon to perform the surgery at
the relevant point of time. In case Dr. Anjali Gupta was competent to perform
LSCS, why she did not perform the same and called Dr. Shalini to perform the
same? The High Risk Consent nowhere mentions the name of the patient for
whom it was given or the name of the doctor who accepted it. It is apparent on
the face of this High Risk Consent that the same has been written by two
different persons and at different stages and is questionable. Performance of
Surgery Involvement of Dr. Shalini came to the light only when the complainant
filed the complaint case before the District Forum against the Hospital (R-1 and
the treating Doctor (Dr. Anjali). Prior to this her name was nowhere to the
knowledge of the patient's family. The hospital never told that the operation
would be done by any doctor other than Dr. Anjali Gupta to whom consent was
given. Involvement of Dr. Shalini after the complaint had been filed- before the
District Forum, raises two possibilities (a) that Dr. Anjali to whom consent was
given was not qualified to do LSCS, and the patient was operated by Dr. Shalini
who was never authorised by the patient party to perform the surgery, or, (b)
Dr. Shalini Jain did not operate the patient and simply gave her name to be
mentioned as the competent/qualified operating surgeon, and in reality the
patient was operated by Dr. Anjali, who was not competent to do LSCS at that
relevant time. Either way, the respondent No. 1 to 3 have done a thing, which
they were not supposed to do and this amounts to medical negligence on their
part. It is further contended by the Petitioner that legal notice sent by the
complainant was also addressed to the Hospital (Sarvodaya Hospital through its
MS) and to Dr. Anjali Gupta (as Dr. Shalini was nowhere in picture. The name
of Dr. Shalini nowhere reflects in the Discharge Summary filed by the
respondents and it mentions only -Dr. Anjali Gupta as the Consultant. The
complaint was filed before the District Forum, Faridabad against Sarvodaya
Hospital and Dr. Anjali Gupta and not against Dr. Shalini Jain. Thus, it is clear
from the evidence available on record that the name of Dr. Shalini has been
included later on realizing that Dr. Anjali Gupta was not a competent Surgeon
to perform the LSCS on the patient at the relevant point of time. Dr. Anjali
Gupta in her affidavit has specifically stated that "as per medical treatment
record, the patient Smt. Vandana was treated by Dr. Shalini Jain, being the
competent and specialized surgeon, whereas the deponent was the assistant
doctor, since the deponent and Dr. Shalini Jain attached with Sarvodaya
Hospital." It is thus clear and an admitted fact that Dr. Anjali Gupta was not a
competent surgeon, but she operated the patient and this point alone
establishes gross medical negligence on her part and deficiency on the part of
the OPs. On the other hand, if Dr. Shalini has operated the patient, she did it
unauthorisedly and without seeking mandatory consent from the patient. It is

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 surprising that the affidavit has been given based on the treatment record and it
shows that Dr. Anjali does not have any personal knowledge as to who and why
operated the patient. Almost identical affidavit based on the treatment record
has been given by Dr. Shalini Jain. It is not clear under what circumstances the
District Forum impleaded Dr. Shalini Jain as one of the respondents/OPs and
why her affidavit has been accepted. The respondents No. 1 to 3 contended that
the patient party could not arrange the Blood required for the deteriorating
condition of the patient. The fact is that the patient party had been asked to
arrange 3 units of Blood and FFP 4 units and the same were arranged and were
administered to the patient. Thereafter, no more blood/FFP were asked for. It is
patently wrong to say that the complainant could not arrange more blood, as
more blood was not asked for, rather the patient was referred to higher centre.
The Discharge Summary also confirms administration of post operative 2 units
of Blood and 4 units of FFA. There was delay in referring the patient to higher
Medical Centre (Safdarjung Hospital). Shifting of the critical patient suffering
from Hypovolemia was the responsibility of both the hospital as well as the
treating doctor. In order to ensure safe transfer of the critically ill wife of the
complainant to the referral Safdarjung Hospital, the doctor and the hospital
were duty bound to arrange for a well equipped Ambulance accompanied by a
doctor for admitting the patient in the referral hospital. The operation was done
at 3.15 AM on 31.05.2008 and after the said surgery, the condition of the
patient kept on deteriorating as the bleeding could not be controlled by the
treating doctors of R-1 hospital. No concrete steps were taken to ascertain the
actual source of bleeding. Neither any Exploratory Laparotomy was done, nor
Hysterectomy was performed to control the heavy bleeding, rather the patient
was kept on conservative treatment and only blood/FFP units were administered
from 3.15 AM onwards till 01.30 PM when the patient was discharged for
shifting to Safdarjung Hospital. The Ultrasound Report at 9.44 AM indicated free
fluid in peritoneal cavity with internal echoes and Hemoperitoneum was
suspected. The indication of collection of blood/fluid in peritoneum was clear,
but no exploration was done by the respondent No. 1 to 3. The source/cause of
bleeding was not ascertained, nor the patient was referred to higher medical
centre despite her Hb level going down to 6.5 gm/dL at 6.56 AM to a critical
value of 4.0 gm/dL at 11 AM as against the reference range of 11- 16gm/dL.
Further, the case was seen by Dr. S. Habboo at 11.30 AM and he opined "USG:
free blood in peroneal cavity and ?hemoperitoneum Needs Re-exploration. Pt is
of high risk; carries high risk of mortality.". Despite such a strong worded
advice of the doctor, the OP No. 1 to 3 did not refer the patient at 11.30 AM
also and again detained her till she was discharged at 01.30 PM. This most
valuable time of almost 4 hours from 9.44 AM till 1.30 PM was wasted by the
OP No. 1 to 3 and they did not refer or shift the patient to a higher Medical
Centre for further investigation/management. The Discharge Summary does not
show the Date and Time of Discharge, but it is an admitted fact that the patient
was discharged at 02.32 PM on 31.05.2008. The Respondents have stated a
wrong fact in their reply submitted before the District Forum that the patient
was discharged at 1.30 PM on 31.05.2008 and have wrongly and deliberately
alleged that the patient party wasted valuable time of 3 hours and 20 minutes.
The respondents have made all possible efforts to manipulate the facts even in
transporting the critical patient. On the one hand they did not arrange any
ambulance, nor deputed any doctor to accompany the critical patient, and on
the other hand they are wrongly alleging that the patient was discharged at
1.30 pm (their own record shows the time of discharge as 2.32 pm) Even at

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 2.32 PM, when the patient was discharged, the hospital as well as the treating
doctor failed in their duties in arranging a well-equipped Ambulance to shift the
critical patient to Safdarjung Hospital. There is nothing on record that the
Respondent No. 1 to 3 made any effort to contact the Referral hospital to make
arrangements including their equipped ambulance to shift the patient. Had the
respondents No. 1 to 3 referred the patient timely and immediately after
indication of free blood/fluid in peritoneal cavity and suspected
hemoperitoneum, and arranged well equipped ambulance accompanied by a
doctor, perhaps, the valuable life of the wife of the complainant could have
been saved, but the respondents No. 1 to 3 have failed in their duty towards
their patient in particular and society at large and are squarely liable for
medical negligence in the treatment as well as serious deficiency in shifting of
the critical patient to Safdarjung Hospital, where despite best efforts of the
treating doctors, her life could not be saved and she died at about 6 AM on
01.06.2008 due to gross negligence and deficiency attributable to the
Respondents No. 1 to 3. Thus, the patient was detained by respondent No. 1 to
3 for 11 hours after the surgery knowing fully that the condition of the patient
was deteriorating with each passing minute. It stands proved that even after
knowing the presence of hemoperitoneum, followed by advice of physician, a
deliberate and avoidable delay of about 5 hours was caused in discharging the
critical patient at 2.32 PM on 31.05.2008. Another about one hour could have
been saved if ambulance could have been provided/arranged by the
hospital/doctor to shift the patient to Safdarjung hospital. Medical negligence
as well as deficiency is attributable to the respondents No. 1 to 3 in this case.
8.2 On the other Respondents contended that the patient Vandana was brought
to the hospital at about 2.00 A.M. in the night of 31.05.2008 with complaint of
severe bleeding with history of 7 months pregnancy with pain in abdomen and
was attended to in emergency with advice of admission. The high risk of life of
the patient was duly explained to the attendants of the patient prior to the
admission and operation, for which the attendants of the patient had furnished
"High Risk Consent" dated 31.05.2008, notwithstanding consent for conducting
the operation. The patient was diagnosed as a case of Abruptio with severe pre-
eclampsia with severe anemia with previous history of caesarean section. There
was severe bleeding through Os. Taking high risk consent and discussing poor
prognosis about the mother and baby, after admission initial resuscitation and
preterm LSCS was done under GA at 3.15 A.M. As per medical record, the
treating doctor - Dr. Shalini Jain on behalf of the opposite party No. 1 being the
competent & efficient surgeon with the assistance of Dr. Anjali Gupta and para
medical staff had performed successful LSCS on Mrs. Vandana W/o Shri Gopal,
as a result thereof pre-term still born female baby was extracted out. On
shifting of the patient to ICU, patient's urine output remained to be less (total
150 cc in 8 hours) inspite of blood, FFP, Fluids and the patient was having
hypotension with soft distension of abdomen, for which third unit of blood was
also arranged and started. For the purposes of further management of the
patient, more blood was needed but the patient's attendant failed to arrange
more blood, resultantly, there was gradual worsening of patient's status. Since,
the post operative management was needed in a higher medical centre, so the
patient was referred to higher centre for further management and needful. The
patient was discharged from the hospital at 1.30 P.M. on 31.05.2008, whereas,
having perused medical treatment record of Safdarjung Hospital, New Delhi, the
patient is stated to be admitted at 4.50 P.M. on 31.05.2008, resultantly there is
a gap of 3 hours 20 minutes, thus, precious time elapsed in managing the
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 condition of the patient, which factum tend to establish on record that there has
been no delay or lapse on the part of the opposite party No. 1 in referring the
patient to higher centre for further management and needful. In view of the
procedure adopted by the treating doctor, notwithstanding medical references
and instances with regards to such complaint and medical treatment, there has
been no medical imperfection or deficiency in attending to and conducting the
operation of the patient either by the hospital or the treating doctor Mrs. Shalini
Jain or the attending doctor Dr. Anjali Gupta. It is denied that the doctors at
Sarvodaya Hospital referred the patient all of sudden to higher centre for
needful and that the doctors of the hospital did not allow the complainant and
any other relative to see the patient, in the said condition. It is also denied that
the doctors at Safdarjung hospital disclosed to the complainant that Smt.
Vandana died due to medical negligence of the doctors at Sarvodaya Hospital
being delayed in referring the patient and the doctors at Sarvodaya Hospital
were negligent in giving medical treatment to the patient and that the doctors
kept the complainant and other relatives in dark about her condition. It is
vehemently denied that past history of medical check up of the patient with
Civil Hospital, Ballabgarh was handed over by the attendant of the patient to
the doctor at Sarvodaya Hospital and the said doctors deliberately mentioned in
the discharge summary dated 31.05.2008 that no previous investigation record
available, resultantly the doctors at the hospital acted in violation of
professional ethics and medical duties to fulfil their commercial interest. The
Respondent further denied that the doctors at the hospital also failed to take
precautionary measures to avoid complications after operation and no qualified
surgeon remained present with the patient to check the post operative
complications. So far as the death of the patient - Smt. Vandana on 01.06.2008
at 6.00 A.M. in Safdarjung Hospital, New Delhi is concerned, the same is denied
for want of knowledge of the OPs. It is contended that the complainant has
suppressed and concealed the true and material facts and information in
lodging of the present complaint. As per medical record, the treating doctor -
Dr. Shalini Jain on behalf of the opposite party No. 1 being the competent &
efficient surgeon with the assistance of Dr. Anjali Gupta and para-medical staff
had performed successful LSCS on Mrs. Vandana W/o Shri Gopal, as a result
thereof pre-term still born female baby was extracted out. On shifting of the
patient to ICU, patient's urine output remained to be less (total 150 cc in 8
hours) inspite of blood, FFP, Fluids and the patient was having hypotension
with soft distension of abdomen. for which third unit of blood was also
arranged and started. For the purposes of further management of the patient,
more blood was needed but the patient's attendant failed to arrange more
blood, resultantly, there was gradual worsening of patient's status. As
information gathered out of medical record in the name of Smt. Vandana
pertaining to Safdarjung Hospital, New Delhi, so placed on the Forum's record,
the cause of death has been stated as Cardiac arrest. As such, the allegations
that the doctors at Safdarjung Hospital disclosed to the complainant, that it is a
case of medical negligence of doctors at Sarvodaya Hospital at Faridabad stands
negated.
8.3 Respondent No. 4- New India Assurance Co. Ltd. contended that Insurance
Policy was issued in the name of Dr. Shalini Jain with limit of Rs. 15,00,000/-
from 25.02.2008 to 24.02.2008. The District Forum in para 13 of its order
dated 11.10.2015 has held that "13. Thus this forum is of the opinion that
though no medical negligence has been established against opposite parties
nos. 1 to 3 in the treatment of the complainant's wife due to absence of any
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 expert opinion but deficiency in service and carelessness stand proved against
opposite parties nos. 1 to 3 for their failure to transfer the complainant's wife to
Safdarjung Hospital, New Delhi with the required alacrity......" Against the order
dated 11.10.2015 of the District Forum in CC/515/2008, the Sarvodya Hospital,
Dr. Anjali Gupta and Dr. Shalini Jain filed First Appeal No. 1120 of 2015 before
the State Commission. The State Commission had set aside the District Forum's
order. It is contended that it is clear that the District Forum in its order dated
11.10.2015 has not held medical negligence on the part of Respondents -1 to 3.
The Petitioner has not filed any First Appeal before the State Commission,
challenging that part of the District Forum vide which it was held that there is
no Medical Negligence on the part of Respondents -1 to 3. Thus, this part has
become final. The State Commission has also reiterated that there is no
negligence on the part of Respondents-1 to 3. Therefore, Respondent No. 4 -
New India Assurance Co. Ltd. Is not liable to pay any compensation to the
Petitioner under Professional Indemnity Policy with the insured's name Dr.
Shalii Jain.
8.4 It is contended by Respondent No. 5/United India Insurance Co. Ltd. that
the present Revision Petition is preferred against the order dated 08.09.2016
wherein the State Commission has set aside the order dated 19.10.2015 passed
by the District Forum and dismissed the Petitioner's complaint. Respondent No.
2, Dr. Anjali Gupta has taken a Professional Indemnity Policy from the
Respondent No. 5 for the period from 01.03.2008 to 28.02.2009. Respondent
No. 5 is not privy to the Petitioner's allegations against the Respondent Nos. 1
to 3. Respondent No. 5 is not the necessary party in this litigation. The
Petitioner has not made any plea or claimed any relief against the Respondent
No. 5. The relationship between Respondent No. 5 and Respondent No. 2 is that
of an independent and separate contract. Once this Commission determines the
liability of Respondent No. 2, only then cause of action arises for Respondent
No. 2 to apply for indemnification from Respondent No. 5. The indemnification
would be subject to the terms and conditions of the insurance policy. Reliance
is placed on judgment of this Commission in Mohit Srivastava V. Dr. Neelam
Mishra & Ors., MANU/CF/0056/2021.
9. District Forum vide its order dated 19.10.2015 has held that no medical negligence
has been established against OPs-1 to 3 in the treatment of complainant's wife due to
absence of any expert opinion but deficiency in service and carelessness stands proved
against opposite parties nos. 1 to 3 for their failure to transfer the complainant's wife to
Safdarjung Hospital, New Delhi with the required alacrity.
10. The State Commission in its order dated 08.09.2016 has observed that there was
no failure on the part of OP-1 regarding transfer of patient to Safdarjung Hospital.
Extract of relevant paras of orders of State Commission are reproduced herein below:-
"8.Learned counsel for the complainant vehemently argued that doctors at O.P.
No.1 did not refer Vandana immediately and kept her just to inflate the bill. Had
she been referred to higher centre immediately her life could have been saved,
so learned District forum rightly granted compensation as mentioned above. He
placed his reliance upon opinion of Hon'ble National Commission expressed in
revision petition No. 946 of 2013 titled as Grewal Hospital Vs. Sher Singh
decided on 11.11.2014.
9. This argument is of no avail. There is no evidence on the file showing that

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 there was any negligence on the part of the OPs and Doctors working with O.P.
No.1. Complainant has failed to point out any evidence on the basis of which it
can be presumed that there was any laxity on their part.
10. It is alleged by OPs that the complainant was told about situation of the
patient and risks involved at that time, which is clear from the perusal of
Annexure R-3. From the perusal of Annexure R-3 it is clear that the complainant
was informed about heavy bleeding and that condition of the patient was
serious and there could be danger to her life. After his consent the operation
was performed. So it cannot be presumed that there was any negligence on
their part. After operation she was kept in ICU and later on she was referred to
Safdarjung Hospital. It was nowhere opined by the doctors of Safdarjung
Hospital that had she been referred immediately she could have been saved.
There is no opinion of any expert about any negligence on the part of the O.P.
Nos. 1 to 3. She was brought at O.P. No.1 at about 2.32 A.M. and necessary
action was taken at 03.15 A.M. She was admitted at Safdarjung Hospital at
about 6.00 A.M. It cannot be opined that she was kept unnecessarily at O.P.
No.1 and there was delay in reference. So it cannot be presumed that there was
any failure on the part of the O.P. No.1 regarding transfer of patient to
Safdarjung Hospital. It has no-where come that due to this reason patient had
died. Findings of learned District Forum qua this fact are not correct and liable
to be set aside. Complainant cannot derive any benefit from the cited case law
because that is based on altogether different facts. In that case hospital did not
provide Ambulance to carry patient to other centre. There was specific
allegation about this fact, whereas it is nowhere alleged in the present
complaint that O.P. Nos. 1 to 3 did not provide any ambulance."
1 1 . As a sequel to above discussion, it is clear that impugned order dated
19.10.2015 cannot be sustained. Hence the same is hereby set aside, appeal is
allowed and complaint is dismissed.
11. A bare perusal of para 10 of order of State Commission cited above shows that
there is lack of application of mind and appreciation of facts of case and evidence on
record by the State Commission. The State Commission has stated that patient (wife of
complainant) was brought to OP-1 hospital at about 2.32 A.M., and necessary action
was taken at 3.15 A.M. She was admitted at Safdarjung Hospital at about 6.00 A.M.
(emphasis supplied). It cannot be opined that she was (emphasis as in the original
order) kept unnecessarily at OP- 1 hospital and there was delay in reference. As per
above observation, the State Commission has concluded that reference to Safdarjung
Hospital was made in less than three hours of taking necessary action (i.e. doing LSCS)
as she was admitted in Safdarjung Hospital, New Delhi at about 6.00 AM., meaning
thereby, according to State Commission's finding, she was discharged from the OP-1
hospital, which is located at Ballabgarh, Faridabad, before 6.00 A.M., i.e. less than 3
hours from the time LSCS was performed, as it could have taken atleast 45 to 60
minutes for the patient to be transported from Ballabgarh, Faridabad to Safdarjung
Hospital, New Delhi and may be about another half an hour to complete admission
formalities there. It is primarily on the basis of this finding of timing of admission,
performance of LSCS at OP-1 hospital and time of admission at Safdarjung Hospital,
New Delhi that the State Commission has concluded that there was no failure on the
part of OP-1 regarding transfer of patient to Safdarjung Hospital, New Delhi and that it
has nowhere come that due to this reason patient has died and that finding of District
Forum qua this fact are not correct and liable to be set aside. As we will see, the above
stated observations/findings of State Commission are devoid of facts and evidence on
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record and this shows lack of application of mind in properly appreciating the facts of
case and evidence on record by the State Commission and on this ground alone, the
order of State Commission is liable to be set aside as it suffers from a material
irregularity. It is important to note that OPs have no where in their response to RP/notes
of written arguments have taken the plea that admission timing at Safdarjung Hospital
at about 6.00 A.M. is a typo error and should be read as 6.00 P.M. As per OP-1's own
case, as brought out in their written synopsis filed on 08.06.2023, the patient was
brought to OP-1 hospital at about 2-00 A.M. on 31.05.2008 (intervening mid night of
30/31.05.2008) State Commission mentions this time at 2-32 A.M.- a difference of
about half an hour here), LSCS was done at 3-15 A.M. (this timing State Commission
records correctly, patient was discharged from the hospital at 1-30 P.M. on 31.05.2008,
and based on perusal of medical treatment record of Safdarjung Hospital, New Delhi,
Patient is stated to be admitted at 4-50 P.M. on 31.05.2008 (State Commission takes
this time as 6.00 A.M. on 31.05.2008. Petitioner on the other hand, in his written
synopsis filed on 21.02.2023, has reiterated the timings stated in the State
Commission's order "brought to OP-1 hospital about 2-32 A.M., necessary action (LSCS)
at 3-15 A.M. and admission at Safdarjung Hospital, New Delhi at about 6.00 A.M." The
Petitioner specifically contended that State Commission has given its findings in para 10
by wrongly observing facts relating to timing, and that State Commission has presumed
that patient was not at all retained in OP-1 Hospital in the post- operative period and
was immediately transferred to Safdarjung Hospital, New Delhi after doing the surgery
and the patient was admitted at Safdarjung Hospital, New Delhi at about 6.00 A.M. i.e.
within three hours of doing the Surgery, a presumption which is not correct and
contrary to facts available on record. The OPs-1 to 3 did not even given any specific
response to these contentions of Petitioner in their written synopsis, which was filed on
08.06.2023, i.e. after the date of filing written synopsis by the Complainant. They have
not even taken a plea that 6.00 A.M. mentioned in the State Commission's order is a
typographical error and may be read as 6.00 P.M. They have themselves contended in
the written synopsis the discharge time to be 1.30 P.M., although the discharge
summary shows the discharge time as 2.32 P.M. only i.e. a variation of one hour as per
records from the one contended otherwise. OPs-1 to 3 admit that time of admission at
Safdarjung Hospital was at 4.50 P.M. on 31.05.2008 (as per perusal of medical
treatment record of Safdarjung Hospital, New Delhi). Hence, even if we assume for a
moment that 6.00 A.M. in State Commission's order is a typographical error for 6.00
P.M. even by OP-1 to 3's own admission, the time of admission at Safdarjung Hospital,
New Delhi was about 5.00 P.M. (4.50 P.M.) and not about 6.00 P.M. Similarly, time of
arrival of patient at OP-1 hospital, even by their own contention in the written synopsis,
was 2-00 A.M., although the records (discharge summary) shows it to be 2-32 A.M.
Hence, State Commission wrongly and in a casual manner considered the facts and
evidence on record about time of discharge, and consequently set aside the order of
District Forum.
12. We are in agreement with the contentions of the Complainant that except for the
above mentioned observations (i.e. those given in para 10 of its order, which have been
reproduced above), the State Commission has not discussed the merits of the case and
passed the impugned order on the basis of assumptions and on wrong facts.
Complainant does not deny the time of admission on 31.05.2008 i.e. 2.32 A.M. but
contends that referral was after 11 hours of the Surgery/Operation, (which broadly
matches with the time of discharge given in the discharge summary. As per the
Complainant, the patient died at Safdarjung Hospital, New Delhi at 6.00 A.M on
01.06.2008 i.e. on the next day/morning. Complainant has specifically contended that
State Commission seriously erred in presuming that patient was admitted at Safdarjung
Hospital at about 6.00 A.M., while as per documents on record, admission at Safdarjung
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Hospital was at 4.50 P.M. Although the discharge summary shows the date and time of
admission as 31.05.2008, 2.32 A.M., it does not show the date and time of discharge,
but the same is seen recorded on the final bill, which records the admission date as
31.05.2008, admission time as 02.32.11 (i.e. 2.32 A.M.), discharge date 31.05.2008
and discharge time 14.32.20 (i.e. 2.32 P.M.) Hence, observations of State Commission
regarding date of admission at Safdarjung Hospital at 6.00 A.M. on 31.05.2008 are not
at all based on facts of the case and documentary evidence on record. Hence, on this
count the State Commission committed a material irregularity.
13. Now we look at another aspect of the case and the observations/finding of State
Commission therein. This is about the doctor who performed the LSCS
Surgery/operation. State Commission in para 2 of its order states "OP Nos. 1 to 3 filed
reply controverting their averment and alleged that Vandana was brought to hospital at
about 2-00 A.M .....Dr. Anjali Gupta Performed Successful LSCS and as a result
thereof pre-term stillborn female baby was extracted out......." (emphasis
supplied). But as per the case/contention of OP-1; (which is also reiterated in their
written synopsis filed on 08.06.2023, "......As per medical record, the treating
doctor Dr. Shalini Jain on behalf of OP-1', being the competent and efficient
Surgeon, with the assistance Dr. Anjali Gupta and para-medical staff had
performed successful LSCS on Mrs. Vandana...." (emphasis supplied). Hence,
although the OP-1 itself contended that it was Dr. Shalini Jain who performed the LSCS
and not Dr. Anjali Gupta, who only assisted Dr. Shalini Jain, State Commission, quoting
the reply of OP- 1 to 3 observed that it was Dr. Anjali Gupta, who performed successful
LSCS. On this count too, the order of State Commission suffers from a material
irregularity. OP1 specifically contended that "As per medical record", the LSCS was done
by Dr. Shalini Jain, while the Complainant contended that surgery was performed by Dr.
Anjali Gupta stating further that the consent form signed was for Dr. Anjali Gupta and
not Dr. Shalini Jain. The fact is found correct on perusal of the relevant consent form on
record. In fact, in the original complaint, the complainant did not make Dr. Shalini Jain
as one of the OP, only the Hospital and Dr. Anjali Gupta were made OP-1 & OP-2
respectively. Even in the Legal Notice sent by the Complainant, Dr. Shalini Jain was not
named.
14. We have carefully gone through various medical records like Discharge Summary,
reports/references for various tests like Haematology etc., which mention the name of
consulting/treating/referring doctor's as Dr. Anjali Gupta only. Nowhere in these
documents/medical record, name of Dr. Shalini Jain appears. However, in some
documents like Emergency Consultation Notes, it is stated Dr. Shalini informed Adv.
(Advised) Admission ↓(under) Dr. Shalini Jain/Anjali Gupta (Gynae & Obst.), the
operation notes also mention name of surgeon as Dr. Shalini and Assistant as Dr.
Anjali/Sanjay, and Treatment chart showing consultant Dr. Shalini Jain/Dr. Anjali
Gupta. Hence, based on available records, it cannot be concluded with certainty as to
whether the LSCS operation was done by Dr. Shalini Jain or Dr. Anjali Gupta. Operation
notes being an important document, do state the name of Surgeon as Dr. Shalini Jain,
although discharge summary, another important medical record, names only Dr. Anjali
Gupta. Considering that the District Forum has concluded no medical negligence on the
part of doctors, but only deficiency in service in terms of not arranging the required
quantity of blood and ambulance and delay in referral to Safdarjung Hospital, and these
findings have not been challenged by the Complainant, we do not consider it necessary
to go further into the issue as to whether the LSCS Surgery was done nby Dr. Shalini
Jain or Dr. Anjali Gupta.
15. As regards arrangements of blood, the Respondents-1 to 3 contend that the patient
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party could not arrange the Blood required for the deteriorating condition of the patient.
Petitioner on the other hand contends that the patient party had been asked to arrange 3
units of Blood and FFP 4 units and the same were arranged and were administered to
the patient. Thereafter, no more blood/FFP were asked for. It is patently wrong to say
that the complainant could not arrange more blood, as more blood was not asked for,
rather the patient was referred to higher centre. The Discharge Summary also confirms
administration of post operative 2 units of Blood and 4 units of FFA. A perusal of
contentions of Respondents -1 to 3 show that they have put the onus of arranging blood
on the patient's family. In this regard, this Commission in Mr. Arvind Pandey & Anr. Vs.
Dr. Mrs. Sulekha Saran & Ors., CC No. 209 of 2000 decided on 06.07.2012, held:
"17. xxxxx If the hospital did not have the arrangement for the blood and
considering that the elderly pregnant woman was of the Rh-ve factor, in our
view, it was very necessary for the doctors to have made prior arrangement for
the required blood before embarking on the LSCS. Obviously, this was not
done. What, however, we find is that the opposite party/hospital is a purely
maternity center undertaking delivery of children including complicated cases
all-round the year. In the process, they must have encountered situations
wherein even in a normal delivery blood would have been required for
transfusion to anaemic mothers. What is more surprising is that if the hospital
did not have its own arrangement for the storage of blood, the least it ought to
have was an arrangement with the Safdarjung Hospital or the All India Institute
of Medical Sciences, which are located very close to it or even with the blood
bank of Indian Red Cross Society, Near Parliament Street, New Delhi on S.O.S.
basis, so that in case of sudden emergency blood could be arranged at the
shortest possible notice. xxxxxx"
"20. xxxx We are of the view that opposite party no.1 ought to have enquired
and ensured that before taking the caesarean operation of a high risk patient
there was arrangement for the blood and in any case if the hospital did not
have such facility, she ought not to have undertaken the caesarean operation
and instead ought to have advised the complainant to take his wife to a better
hospital equipped with the facility of blood bank. xxxx"
"21. Insofar as the hospital is concerned, it has to share the major blame, as
being a maternity hospital it has been specialising in attending to pregnant
women and delivery of children and should have been specialising in attending
to pregnant women and delivery of children and should have been fully
equipped for all emergencies, including a blood bank as in a society as ours
many would-be- mothers coming from the not-so-well-to-do-families may face
the problem of post- delivery haemorrhage requiring blood transfusion. The
hospital, therefore, would be primarily responsible for this lapse. Had there
been a blood bank, the precious life of the complainant's wife perhaps could
have been saved."
Hence, we are of the considered view that it is the prime responsibility of Hospitals like
the OP-1 herein to have adequate arrangements for blood requirements of
emergency/critical patients, either in their own Hospital or in collaboration with other
blood banks/Hospitals nearby, and they cannot shift the responsibility for arranging
blood for patient in critical stage on the family of the patient. Failure on the part of
Hospital on this count amounts to deficiency in service.
16. As regards delay in referring the patient to higher medical centre and arranging

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ambulance and making other arrangements, the complainant contends that shifting of
the critical patient suffering from Hypovolemia was the responsibility of both the
hospital as well as the treating doctor. In order to ensure safe transfer of the critically
ill wife of the complainant to the referral Safdarjung Hospital, the doctor and the
hospital were duty bound to arrange for a well-equipped ambulance accompanied by a
doctor for admitting the patient in the referral hospital. The source/cause of bleeding
was not ascertained, nor the patient was referred to higher medical centre despite her
Hb level going down to 6.5 gm/dL at 6.56 AM to a critical value of 4.0 gm/dL at 11 AM
as against the reference range of 11- 16gm/dL. Further, the case was seen by Dr. S.
Habboo at 11.30 AM and he opined "USG: free blood in peroneal cavity and ?
hemoperitoneum Needs Re-exploration. Pt is of high risk; carries high risk of mortality."
Despite such a strong worded advice of the doctor, the OP No. 1 to 3 did not refer the
patient at 11.30 AM also and again detained her till she was discharged at 01.30 PM.
This most valuable time of almost 4 hours from 9.44 AM till1.30 PM was wasted by the
OP No. 1 to 3 and they did not refer or shift the patient to a higher Medical Centre for
further investigation/management. The Discharge Summary does not show the Date and
Time of Discharge, but it is an admitted fact that the patient was discharged at 02.32
PM on 31.05.2008. Had the respondents No. 1 to 3 referred the patient timely and
immediately after indication of free blood/fluid in peritoneal cavity and suspected
hemoperitoneum, and arranged well equipped ambulance accompanied by a doctor,
perhaps, the valuable life of the wife of the complainant could have been saved, but the
respondents No. 1 to 3 have failed in their duty towards their patient in particular and
society at large and are squarely liable for medical negligence in the treatment as well
as serious deficiency in shifting of the critical patient to Safdarjung Hospital, where
despite best efforts of the treating doctors, her life could not be saved and she died at
about 6 AM on 01.06.2008 due to gross negligence and deficiency attributable to the
Respondents No. 1 to 3. In this regard, OPs 1 to 3 has contended that patient was
discharged at 1.30 P.M. on 31.05.2008, whereas, having perused medical treatment
record of Safdarjung Hospital, New Delhi, the patient is stated to be admitted at 4-50
P.M on 31.05.2008, time elapsed in managing the condition of the patient, which factum
tend to establish on record that there has been no delay or lapse at the part of OP-1 in
referring the patient to higher centre for further management and needful. This
Commission in Grewal Hospital & Anr. versus Sher Singh, RP 946 of 2013 decided on
11.11.2014 on the issue of duty of the hospital and the doctor in transferring the
patient on reference to a higher medical centre has held that :-
"18. We shall now consider the third allegation, viz. non-availability of
ambulance for transfer of the deceased to the nearest PCI center. In the
Complaint as well as in the affidavit, filed as evidence, it was specifically
pleaded that the Petitioners had failed to provide an ambulance for shifting the
deceased from the Petitioner hospital to the Cardiac Center, and thus, the delay
in the process proved fatal. The averment was denied in the affidavit filed by
the Petitioners by merely stating that the hospital had only one ambulance, and
at that point of time it was transporting some other patient. Except for the said
bald statement, no supporting material was brought on record. As a matter of
fact, it was stated in the affidavit that "Just on listening that ambulance may
take some time, the patient was taken away by the Complainant in own
conveyance to the Cardiac Centre of own choice". It is manifest from the
statement that, on their own showing, Petitioner No. 2 or his staff did not make
any effort to call the emergency department of PCI to which the deceased was
being referred, for arranging ambulance equipped to ferry such patients. Having
himself diagnosed that the deceased was under AMI attack, Petitioner No. 2
ought not to have waited for his own ambulance, if at all he had one. Knowing
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 fully well that each minute, if not second, in the given situation was precious,
he should have ensured that the deceased was transferred to a Cardiac Center
as quickly as possible. We are convinced that on facts at hand, the Petitioners
had failed to act swiftly, expected even from a general Practitioner or consulting
Physician and a Non-PCI capable hospital. Alas, if an ambulance, equipped to
transfer an AMI patient had been arranged by the Petitioners on time, perhaps,
a precious human life could be saved. We are of the opinion that this was
serious lapse on the part of the Petitioners, amounting to medical negligence
and deficiency in service on their part. Thus, we uphold the finding of the State
Commission on this issue.
19. To sum up, we are of the opinion that though no medical negligence has
been established against the Petitioners in the emergent treatment of the
deceased for AMI but medical negligence and deficiency in service stands
proved against them for their failure to transfer the deceased to the Cardiac
Care Center with the required alacrity."
17. In Dr. M.A. Natarajan & Ors. Versus Damodaran T. & Ors. First Appeal No. 571 of
2015, decided on 13.12.2018, this Commission held:
"30. Keeping in view the principle laid down by the Hon'ble Supreme court in
all the aforenoted judgements we are of the considered view that the State
Commission has rightly made the Hospital also liable for the negligent act of
not making available the operation theatre and for not providing the ambulance
and making the Patient, in that risky condition with severe bleeding, go in an
auto-rickshaw.
This kind treatment rendered to a high-risk Patient is extremely deprecated."
1 8 . In the instant case, it is on record that ambulance with requisite facilities and
atleast a para-medical staff for immediate transfer of patient to Safdarjung Hospital was
not arranged by OP-1 Hospital, due to which valuable time was lost in leaving this
responsibility on the family of the patient. Hence, OP Hospital, in not immediately
arranging a well-equipped ambulance with requisite medical personnel, immediately
after discharge, which they claim to be at 1-30 P.M., is responsible for deficiency in
service.
19. In view of the foregoing, we are of the considered view that State Commission
committed a material irregularity in proper appreciation of facts and evidence on record,
hence its order cannot be sustained. Further, as orders of District Forum with respect to
there being no medical negligence on the part of OP-1 to 3 have not been challenged by
Petitioner/Complainant, we endorse the same although it was the case of
Petitioner/Complainant that OP-2 Dr. Anjali Gupta was not competent/authorized to do
the operation. As regards deficiency in service on the part of OP 1 to 3 in terms of not
arranging the required quantity of blood and ambulance and delay in referral to
Safdarjung Hospital, agreeing with the findings of District Forum, we hold OP-1/hospital
responsible and liable for deficiency in service, including for acts of omissions and
commissions in this regard on the part of its doctors and/or officials. As such aspects
are part of Hospital management, we hold that OP-2 (Dr.Anjali Gupta) cannot be held
responsible for these aspects of deficiency in service. As the Petitioner/Complainant
himself contends that LSCS Surgery was not done by OP-3 (Dr. Shalini Jain) and he had
not even made her a party in the Consumer Complaint filed before the District Forum,
she was impleaded by District Forum on its own, and he did not name her in the legal

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notice, and no liability can be fastened on her also. Moreover, considering that she
cannot be held responsible for deficiency in service on the aspects which are part of
hospital management, even if she has performed the LSCS Surgery, she cannot be held
liable for deficiency in service on these aspects. Hence, we hold only OP-1 Hospital
liable for deficiency in service in terms of (a) not arranging the required quantum of
blood, (b) delay in referring to higher medical institute (Safdarjung Hospital), (c) not
arranging a reasonably equipped ambulance with atleast a para-medical staff
accompanying etc.
20. Respondent No. 4 contends that Insurance Policy was issued in the name of Dr.
Shalini Jain. The District Forum in its order, has not held medical negligence on the part
of Respondents-1 to 3. The Petitioner has not filed any Appeal before the State
Commission challenging that part of the District Forum's order vide which it was held
that there is no Medical Negligence on the part of Respondents -1 to 3. Thus, this part
has become final. The State Commission has also reiterated that there is no negligence
on the part of Respondents-1 to 2. Therefore, New India Assurance Co. Ltd.
(Respondent No. 4) is not liable to pay any compensation to the Petitioner under
Professional Indemnity Policy with the insured's name Dr. Shalini Jain.
21. Respondent No. 5 has contended that the Petitioner has been filed against the order
dated of the State Commission, wherein the State Commission has set aside the order
passed by the District Forum and dismissed the complaint. Dr. Anjali Gupta -
Respondent No. 2 has taken a Professional Indemnity Policy from Respondent No. 5.
Respondent No. 5 is not privy to the Petitioner's allegations against the Respondents-1
to 3. Respondent No. 5 is not a necessary party in this litigation. The Petitioner has not
made any plea or claimed any relief against Respondent No. 5. The relationship between
Respondent -5 and Respondent No. 2 is that of any independent and separate contract.
Once this Commission determines the liability of Respondent-2, only then
Respondent=2 can apply for indemnification from Respondent-5.
22. As regards responsibility/liability of Insurance Companies, we are of the considered
view that if the hospital/doctors have got any Professional Indemnity Policy from any
Insurance Company, and if they are finally held liable to compensate the complainant,
they are free to lodge their claim with the Insurance Companies alongwith requisite
orders of the Commission under which they have been held liable to pay compensation
and the Insurance Company will consider the claim as per the terms and conditions of
their Policy. Hence, at the stage of holding hospital/doctors guilty of medical negligence
by Consumer Fora, the insurance company cannot be directed by the Consumer Fora to
pay the compensation straightway under the policy. In Mohit Srivastava and Another
Versus Dr. Neelam Mishra and Others MANU/CF/0056/2021, this Commission held that
:-
"26. We restrain ourselves to give any findings on the liability of Insurance Co.
in the instant case. It should borne in mind that Medical negligence has been
alleged against the hospital and the doctor, and not against the insurance cos.
and the claim of the complainants is against the hospital and the doctor (for
their alleged medical negligence), and not against the insurance cos. The
respective insurance policy concerned is a separate and a distinctively different
contract between the hospital / doctor and the respective insurance co., and is
governed by its own terms and conditions. However, the Insurance Co. is duty
bound to indemnify the doctor/s or hospital."
23. For the reasons stated hereinabove, and after giving a thoughtful consideration to

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the entire facts and circumstances of the case, various pleas raised by the learned
Counsel for the Parties, we set aside the orders of the State Commission and restore the
order of the District Forum with certain modifications, holding that only OP-1 hospital
shall be responsible and liable to pay the compensation of Rs. 6.00 Lakh awarded by
the District Forum. This amount shall be paid by OP-1 hospital (Respondent-1 herein)
with interest @9% p.a. w.e.f. date of order of the District Forum. In addition, the
Petitioner herein is entitled to cost of Rs. 20,000/- as litigation costs in connection with
the Revision Petition in question. All amounts payable as per this order shall be paid by
OP-1 (Respondent-1 herein) to Complainant (Petitioner herein) within 30 days of this
order, failing which, all amounts payable at the expiry of 30 days shall bear interest @
12% p.a. till the date of actual payment.
24. The pending IAs in the case, if any, also stand disposed off.
© Manupatra Information Solutions Pvt. Ltd.

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