First Appeal No.1560/1571 & 2499 of 1998,IN Complaint No.519 of 1995

4th February, 2005

Petitioner Counsel: Shri. J. M. SHYAMKUWAR
Respondent Counsel: Shri. NEERAJ PATIL,Shri. V. S. KUKDE

Cases Cited:
Smt. Savita Garg Vs. The Director, National Heart Institute, 2005(5) ALL MR 42 (S.C.)=2004 CTJ 1009 (SC)(CP) [Para 2]

JUDGMENT

Shri. B. B. VAGYANI, President :- These three Appeals arise out of the order dated 6-7-1998 passed by Distt. Forum, Nagpur. Feeling aggrieved by the impugned order, the original complainant in C. C. No.519/95has filed Appeal No.1560/98, original O.Ps. No.1 & 2 have filed Appeal No.2499/98 and the original O.P. No.3 has filed Appeal No.1517/98.

The Forum below has observed in Para 5 of the Order as under :

"However, the complainant in her complaint has failed to give names of two doctors who attended her at the point of time. She had also not stated the name of the nurses who according to her were negligent. In the absence of not naming and not joining the two doctors and the alleged nurses as party to the complaint, we hold that the complaint is bad for non-joinder of parties. So far as the complaint relating to death of the foetus, it is true that the complainant has joined Maharashtra Government and Dean of the Hospital as party, however, in our Opinion, unless the alleged negligence was proved against the particular employee of the hospital, the master can not be held liable for vicarious liability. Since, the staff was not made party who allegedly committed negligence, the alleged persons had no opportunity to come and defend themselves. Therefore, merely on the allegations of the complainant which is not conclusively proved, the staff of the hospital can not be held liable of negligence. To prove negligence, it was very essential for the complainant not only to name the staff due to whose negligence foetus had died, but also should have joined them as party. We hold that first claim of the complainant viz that of the foetus is not maintainable for non-joinder of party."

2. So far as above observation of the Forum is concerned, a reference can be made to the decision of Hon'ble Supreme Court in the case of Smt. Savita Garg Vs. The Director, National Heart Institute reported in 2004 CTJ 1009 (SC) (CP) : [2005(5) ALL MR 42 (S.C.)]. The consumer complaint of medial negligence was dismissed by National Commission holding it not maintainable for the absence of treating doctors being not impleaded as a party. The question arose before Hon'ble Supreme Court was, whether non impleading the treating doctor as party be a ground for the dismissal of the complaint ? The Supreme Court recorded negative finding and observed that it is very difficult for the patient or his relatives to give any details as to which doctor treated him and whether that doctor was negligent or the nursing staff was negligent. It would be too much of a burden on the patient or his family members. It is not proper to place any such burden on them. The responsibility of the Hospital/Institute is to provide the patient with best service. After claimant successfully discharged the initial burden, the Hospital was negligent and as a result of such negligence, the patient died, thereafter, the burden lied on the Hospital and the doctor who treated the patient. Summary dismissal of the complaint by National Commission on the question of non-joinder, in the circumstances, held to be not proper. The burden was on the Institute. It was its duty to specify that there was no lack of care or diligence. Institute, therefore, not to be absolved of is responsibility because a particular doctor was not impleaded." Hon'ble Supreme Court set-aside the order passed by the National Commission and remitted the complainant for decision afresh in accordance with\the law.

Relying on the ratio in the judgment referred supra, we are inclined to quash and set-aside the order passed by the Forum below and propose to remit the complaint back to the Forum for decision afresh.

ORDER

The Appeal No.1560/98 filed by the Original Complainant is allowed, and Appeal No.2499/98 and 1571/98 filed by Original O.Ps. are disposed of. The order impugned is set-aside. The complaint is remitted back to the Forum below for decision afresh after giving reasonable opportunity of being heard to the respective parties. The Forum below is directed to dispose of the complaint as early as possible, preferably within a period of Three Months from the date of receipt of the order. The Original O.P. No.3 is allowed to withdraw Rs.5000/- deposited with the Distt. Forum, Nagpur.

Order accordingly.