Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a writ petition filed by an Additional District Judge for reimbursement of his treatment charges during Covid-19, the Single Judge Bench of Rekha Palli, J. directed the Government of NCT of Delhi to reimburse the remaining amount of Rs. 16,93,880 towards the cost of Covid-19 treatment incurred by an Additional District Judge during the pandemic.

Petitioner was posted as the Additional District Judge and had approached this Court, as respondents had refused to reimburse in full the expenses incurred by him for his medical treatment while he was admitted in the hospital (Respondent 5) on account of Covid-19.

Submissions on behalf of the Petitioner

Counsel for the petitioner states that the respondents do not dispute the fact that the petitioner was undergoing treatment for Covid-19 at the hospital and since there were no beds available in an empanelled hospital in the NCT of Delhi, the petitioner, due to his dropping levels of oxygen, had to be rushed to the nearest hospital (Respondent 5). Being in a helpless stage, the petitioner had no other option but to pay the entire amount of Rs. 24,02,380 to the hospital against the appropriate receipts.

Based on recommendations made by the Technical Standing Committee constituted by respondents, the hospital reimbursed only Rs. 7,08,500 and refused to pay the balance amount of Rs. 16,93,880 on the ground that this amount was charged by the hospital by ignoring the rates prescribed under the circular issued by the Government of NCT of Delhi, fixing the charges leviable for treatment of patients suffering from Covid-19.

Further, it was submitted that the petitioner cannot be penalized for the hospital charging amounts higher than what was prescribed by the Government of NCT of Delhi (Respondent 1) and if in case, the hospital had acted in violation of the circular, then it is for the Government of NCT of Delhi to act against the hospital and make recoveries, if any.

Submissions on behalf of the Respondent

Counsel for the respondent submitted that the hospital should be directed to explain as to why it had not abided by the circular and should further, be directed to refund the excessive amounts charged from the petitioner which were way above the rates prescribed in the circular.

Analysis, Law, and Decision

The Court opined that the petitioner, who had spent his hard-earned savings, while undergoing treatment to save his life, cannot be told that, since the hospital had failed to abide by the circular issued by the Government of NCT of Delhi, he should seek refund from the said hospital which saved his life. The Court did not find it necessary to delve into the circular’s validity as in the present case, the petitioner was seeking reimbursement of the amount for the bona fide expenses incurred by him for his treatment at the hospital.

The Court relied on Sqn. Commander Randeep Kumar Rana v. Union of India, 2004 SCC OnLine Del 333, wherein the Division Bench while dealing with a case, where the hospital had charged over and above package rates, held that the employer was under an obligation to pay to the government employee, and could make appropriate recoveries in accordance with law, from the hospital which had overcharged him.

The Court held that the Government of NCT of Delhi had to reimburse the petitioner by paying him the differential amount of Rs. 16,93,880 and since this Court had bot expressed any opinion on the validity of the circular, therefore, it would be open for Government of NCT of Delhi to pursue its remedy as per law, against the hospital, including taking penal action, and recovery of any amount which it perceives had been charged in excess. Thus, the Court directed the Government to pay within four weeks the balance amount of Rs. 16,93,880 to the petitioner.

[Dinesh Kumar v. Govt (NCT of Delhi), 2022 SCC OnLine Del 3937, decided on 22-11-2022]


Advocates who appeared in this case:

For the Petitioner(s): Senior Advocate J.P. Sengh;

Advocate Ashim Shridhar;

Advocate Manhisha Mehta;

Advocate Niyati;

For the Respondent(s): Senior Counsel Avnish Ahlawat;

Advocate Laavanya Kaushik;

Advocate N.K. Singh;

Advocate Aliza Alam.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case filed seeking bail for an accused being involved in an alleged bank loan scam by Shakti Bhog Foods Limited (SBFL), Jasmeet Singh, J. granted bail considering the medical condition of the accused as the proviso to Section 45(1) of Prevention of Money Laundering Act, 2002 (PMLA), carves out an exception from the rigors of Section 45 for persons who are sick or infirm.

An FIR was registered under Section 120-B read with Sections 420, 467, 468 and 471 of Penal Code, 1860 (‘IPC’) and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (‘PC Act’) and since the offences in the FIR are scheduled offences under the provisions of the Prevention of Money Laundering Act, 2002 Enforcement Directorate was roped in.

Submissions

Relying on the medical reports, the counsel for applicant submitted that the applicant suffers from multiple serious ailments like one kidney is non-functional and the other one is impaired resulting in inability to effectively remove toxicity from his body. The Applicant also has a serious heart condition which highlights that he is not only sick, but infirm, and hence, needs to be released on bail in accordance with Proviso to Section 45(1) of PMLA.

Counsel for respondents submitted that a bare perusal of the medical history will show that the applicant is suffering from these ailments from 2001 onwards, and even during the period of alleged offences i.e., from the year 2007 to 2012, the applicant was suffering from these ailments. Hence, all the medical conditions of the applicant are historical. He further submits that the jail provided proper and satisfactory medical facilities to the applicant.

Observations

The Court noted that a bare perusal of the Statement of Objects and Reasons of PMLA goes to show that inclusion of the above conditions for grant of bail as a proviso to section 45(1) of PMLA elucidates the legislature’s intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or infirm. Thus, the proviso to Section 45(1) of PMLA carves out an exception from the rigors of Section 45 for persons who are sick or infirm.

The Court opined that sick and infirm have not been defined under the PMLA, therefore, the Court relied on dictionaries to define the term, “Sick” which refers to being “affected by illness; unwell, ailing.” and “infirm” is defined as “not physically strong or healthy; weak or feeble, esp. through old age”.

Issue 1: Whether the applicant falls within the category of sick or infirm so as to grant him the benefit of the proviso to section 45(1) PMLA?

The Court noted that in view of the said medical reports, it leaves no room for doubt that the applicant is both, sick and infirm as he is functioning on 30% capacity of one kidney and the other kidney is dead and requires constant monitoring otherwise his fluctuations can cause death. He has also undergone multiple surgeries for removal of his large intestine, gall bladder, peptic ulcer, colostomy and even a hernia operation. He has a pacemaker installed due to his heart condition and is also suffering from Spondylitis and Vertigo.

Issue 2: Whether the applicant suffers from a condition which cannot be addressed from the jail?

On the contention raised by the respondents that that to enlarge the accused on bail, the High Court has to record a finding that the treatment accorded to the accused by the jail authorities is not “Satisfactory”, the Court noted that prisons provide medical facilities but the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals. The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of.

Conclusion

Thus, the Court concluded that his condition is such that he requires emergent medical assistance which cannot be provided in jail in a prompt and efficient manner vis-à-vis hospital atmosphere. The fact that the applicant is suffering from these ailments from the year 2001 is also not of much help to the respondents” as it is a given fact that ailments aggravate with age. Therefore, the ailments which, coupled with old age bring the applicant within the purview of “Infirm Person”.

The Court granted bail to the accused on furnishing a personal bond with surety in the sum of Rs. 50,000 each to the satisfaction of the Investigating Officer, considering that the applicant is aged, sick and infirm, who is suffering from various complicated diseases.

[Devki Nandan Garg v. Directorate of Enforcement, 2022 SCC OnLine Del 3086, decided on 26-09-2022]


Advocates who appeared in this case :

Mr. Siddharth Luthra, Sr. Adv. with Mr. Rishi Agarwala, Mr. Parminder Singh, Mr. Vishnu Tallapragada, Mr. Kanav Vir Singh, Mr. Akshat Kumar and Mr. Fazan Ahmed, Advocates, for the Applicant;

Mr. Zoheb Hossain, Adv. with Mr. Vivek Gurnani, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant, has prepared this brief.

Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: Biren Vaishnav, J. allowed a petition reiterating that a Government employee is entitled to avail the benefits of medical facilities without any fetters, and that their claim for reimbursement should not be denied by the State mechanically.

The petitioner prayed that he had undergone Angioplasty, and was entitled to full reimbursement of Rs.,1,76,757/-.

Counsel for the petitioner drew the attention of the Court to a representation made by the petitioner on 23-01-2019 to the Regional Information Officer(Respondent 3). The Petitioner had incurred an expense of Rs.,1,76,757 for her medical treatment. She claimed that part reimbursement worth Rs.62,100 for her surgery at Rajasthan Hospital was misconceived. It was submitted that the petitioner should be reimbursed the remaining amount of Rs.1,14,656/-.

Assistant Government Pleader for the respondents vehemently opposed the stand of the petitioner for reimbursement of the balance amount of Rs.1,14,656/- .

The Court relied on the Coordinate Bench judgment of this Court in the case of Chanrakant Kantilal Dave v. State of Gujarat, Special Civil Application No.2736 of 2013, decided on 18-09-2018 which had similar set of facts and its decision was based on the judgment principles of Shiva Kant Jha v. Union of India, (2018) 16 SCC 187. The Court reiterated:

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.”

Keeping in mind the abovementioned case laws and principles the petition was allowed with a direction to respondents to reimburse the balance amount of Rs.1,14,656/- to the petitioner together with the interest @ 9% p.a. from the date of filing of petition till its realization within a period of ten weeks.

[Gulamkadar Kasambhai Shaikh v. State of Gujarat, R/Special Civil Application No. 6345 of 2019, decided on 18-07-2022]


Advocates who appeared in this case :

Mr Nayan D Parekh, Advocate, for the Petitioner 1;

Mr Utkarsh Sharma, AGP, Advocate, for the Respondent 1,2,3.


*Suchita Shukla, Editorial Assistant has reported this brief.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: While allowing a couple to have their frozen embryo transferred to another hospital for infertility treatment, V.G. Arun, J., held that the purpose of the Assisted Reproductive Technology (Regulation) Act, 2021 is to prevent sale of human gametes, zygotes, and embryos; and not to prevent a couple from using their own embryo to develop it into a fetus. The Court noted,

“Close scrutiny of the provision shows that the intention is to prevent/restrict the sale etc. of human gametes, zygotes, and embryos.”

Factual Backdrop

The petitioners-couple were married in the year 2007 and even after fifteen years of marriage, the first petitioner was unable to conceive. Hence, the couple opted for infertility treatment at the Craft Hospital and Research Centre.

As part of the procedure, the first petitioner underwent an Oocytes Retrieval procedure on 02-09-2014. Out of the six eggs injected after retrieval, four fertilised. The embryos were then preserved at the Craft Hospital. However, the treatment was stopped in 2016 on the advice of the Chief Consultant, since the required wall thickness of the uterus could not be obtained.

Later on, the couple re-commenced their treatment at the Sabine Hospital and Research Centre Pvt. Ltd. where the doctors asked the couple to request for transfer of the frozen embryos from the Craft Hospital to the Sabine Hospital.

Commencement of the Assisted Reproductive Technology (Regulation) Act, 2021

During the interregnum, the Assisted Reproductive Technology (Regulation) Act, 2021 came into force on 20-01-2022, imposing restrictions with respect to matters connected to the Assisted Reproductive Technology. Therefore, the Craft Hospital refused to transfer the embryos stating that transfer of the embryos is not permissible after the introduction of the Act.

Analysis by the Court

The preamble of the Act, 2021 shows that the objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.

Further, under Section 29, there is a prohibition against sale, transfer, or use of gametes, zygotes, and embryos, or any part thereof or information related thereto, directly or indirectly to any party within or outside India, except in the case of transfer of own gametes and embryos for personal use with the permission of the National Board.

The Court noted that the intention of the Act, 2021 is to prevent/restrict sale, etc. of human gametes, zygotes and embryos and in the case at hand, there is no such transfer since no donor or third party is involved and the embryos are that of the commissioning couple. Hence, the Court held that Section 29 does not interdict such transfer.

The Court expressed,

“Apart from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application.”

Considering that the maximum period for which embryos can be preserved is ten years and eight years having elapsed already, the Court held that the petitioners would be put to undue prejudice and misery if the transfer is not permitted.

Conclusion and Directions

Resultantly, the Court concluded that the primary objective of the Act, 2021 is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. Holding that the Act, 2021 is not intended to create difficulties for persons opting for the assisted reproductive procedure, the Court issued the following interim directions:

  • Petitioners shall pay the amounts due to the Craft Hospital for preserving the embryos from 02-09-2014 onwards and on such payment being affected, the hospital shall forthwith permit the transfer of the embryos to the Sabine Hospital.

  • The Sabine Hospital shall collect the embryos and transfer it to its Assisted Reproductive Technology Bank and preserve the embryos with due care and protection.

  • The Sabine Hospital shall file an affidavit within five days affirming that it has all the requisite facilities envisaged under the Act.

The matter is posted after a week for further hearing.

[Rakhi Bose v. Union of India,2022 SCC OnLine Ker 3250, decided on 21-06-2022]


Advocates who appeared in this case :

Abraham Vakkanal, Senior Advocate along with M/S. Paul Abraham Vakkanal, Vineetha Susan Thomas & Rohith C., Advocates, for the Petitioners;

Assistant Solicitor General, for Union of India;

Government Pleader, for State of Kerala;

Sherin Varthese, Advocate, for Sabine Hospital and Research Centre Pvt. Ltd.


*Kamini Sharma, Editorial Assistant has reported this brief.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Expressing that, the consensus between the dentists and patients is essential to standardize treatment plans and methods, Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a case of dental negligence and remarked that,

“The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.”

Not everyone can be born with a perfectly aligned smile. If you just changed your smile and nothing else, you would find a dramatic transformation in your personality, grace, confidence, appearance and social presence. When one or more teeth overlap, it can impact the smile and self-esteem.

Background


Revision petition was filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order passed by the Andhra Pradesh Consumer Disputes Redressal Commission, Hyderabad.

What was the core issue?


There was an allegation of dental negligence, wherein the dentists at the OP Hospital unnecessarily performed the Root Canal Treatment (RCT) of 4 teeth and provided metal ceramic crowns causing disfigurement of the face of the complainant.

Present revision was filed by the OP, since the State Commission had directed the OP Hospital to pay Rs 5 lakhs with interest at the rate of 9% p.a. as compensation and Rs 10,000 towards the cost of litigation.

Analysis and Decision


Coram found that the OP was liable for deficiency in services and unfair practices on three counts:

Firstly, there was no grip/retention capacity of crowns in upper teeth, therefore more chances of felling of the crowns during talking, brushing etc. which is certainly an embarrassment.

Secondly, it was unfair on the part of the Opposite Party that the crowns are not metal free ceramic as promised and billed by the Opposite Party but they are metal ceramic

Thirdly, the Complainant was not informed about the implications of RCT as to the teeth would be made non-vital.

The consensus between dentists and patients is essential to standardize treatment plans and methods. In dental treatment, patients often ask orthodontists if they will look more beautiful and have doubts about the ultimate aesthetic effects. Also there is need to calibrate the perception between dentists and patients about the classification of aesthetics into unpleasant, acceptable, and pleasant; otherwise there may be some conflicting views on expectations and treatment. The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.

In view of the above discussion, OP was held liable for medical negligence and deficiency in services since complainant suffered facial disfigurement after dental treatment. [Sravani Dental Hospital v. Anitha Tangellamudi, Revision Petition No. 2736 of 2012, decided on 8-3-2022]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Murali Purushothaman, J., held that there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family.

Background

The petitioner, an Assistant Professor in Catholicate College had took his father, who was totally dependent on him for treatment General Hospital, Pathanamthitta wherein his father was diagnosed with Carcinoma Rectum and was referred to higher center. Accordingly, he was taken to Medical and Surgical Oncology Department of the St. Gregorious Medical Mission Hospital, Pathanamthitta, a private specialty hospital for Cancer treatment. Subsequently, his father had undergone surgery in the Laparoscopic Department of the that Hospital.

Noticeably, the Government had issued a Notification dated 21-01-2016 empanelling certain private hospitals for treatment to facilitate medical reimbursement benefits under the Kerala Government Servants Medical Attendance Rules, 1960. The name of St. Gregorious Medical Mission Hospital, Pathanamthitta was also appeared in the list of private hospitals recognised by the Government for treatment under Rule 8 (3) of the Rules and the Departments recommended included Medical and Surgical Oncology.

The grievance of the petitioner was that his request for reimbursement of Rs. 4,68,038, incurred by him for his father’s treatment had been rejected by the State on the ground that the department of Laparoscopic surgery at St. Gregorious Medical Mission Hospital was not empanelled under the Rules.

Observation and Analysis

Noticeably, for reimbursement request for the treatment undergone between 12-06-2018 and 23-06-2018, for Rs. 65,756 made by the petitioner an amount of Rs. 23,580 was held admissible by the State and accordingly Rs. 18,864 was sanctioned, being 80% of the amount found admissible. The government had that the petitioner’s father was referred to General and Laparoscopic Department by the Medical Oncologist and considering that the treatment was taken on reference from recognized department, sanction was accorded for reimbursement of 80% of the amount found admissible.

Laparoscopy (keyhole surgery) is one of the types of surgical procedure. Under the Rules, ‘medical attendance’ includes surgical treatment. The Laparoscopic surgery for Carcinoma Rectum is part of surgical treatment of the petitioner’s father. Therefore, opining that it is for the Doctor to decide how a patient should be treated and which surgical procedure is safer and suitable to the patient, the Bench held that when Medical and Surgical Oncology department of the Hospital had been recognised by the Government, the State could not reject the claim of the petitioner saying that the General and Laparoscopic surgery department was not recognized by the Government. The Bench opined,

“Undergoing Laparoscopic surgery for Carcinoma Rectum will not make the treatment as one done in a department other than the Medical and Surgical Oncology department in the Hospital. The procedure done and the treatments received at the Hospital is part of the medical and surgical oncology treatments of the petitioner’s father.”

Findings and Conclusion

The Kerala Government Servants Medical Attendance Rules, 1960 had been framed in exercise of the powers under the proviso to Article 309 of the Constitution of India. It provides for reimbursement of the medical expenses incurred by the government servants and their family as defined therein and subject to the conditions provided therein. Further, there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family, therefore, the Bench was of the view that it was impermissible for the respondents to reject the claim of the petitioner for reimbursement of the bills. Accordingly, government order rejecting reimbursement was set aside.

Similarly, for medical reimbursement, what is relevant is whether the claimant had actually taken treatment and the factum of treatment. Since the fact that the petitioner’s father had surgery for Carcinoma Rectum and was treated in the Hospital during different spells was undisputed, the Bench concluded the action of the State was not legally sustainable. Therefore, the State was directed to consider the petitioner’s request afresh and disburse the amounts due to the petitioner pursuant to such within one month therefrom. [George Thomas v. State of Kerala, 2022 SCC OnLine Ker 613, decided on 31-01-2022]


Kamini Sharma, Editorial Assistant has reported this biref.


Appearance by:

For the Petitioners: Jacob P.Alex, Joseph P.Alex and Manu Sankar P., Advocates

For State: Jimmy George, Government Pleader

Case BriefsHigh Courts

Madras High Court: C.V. Karthikeyan, J., grants compensation to a woman who got bitten by a rat in a hospital.

The instant petition was filed seeking a direction against the respondents to pay a sum of Rs 2,00,000 to the petitioner for an alleged rat-bite suffered by her in her left hand in Government Rajaji Hospital.

Petitioner’s son had suffered grievous injuries in a road accident and was admitted as in-patient in Government Rajaji Hospital. Petitioner and her husband alternatively took care of their son.

When the petitioner was sleeping near the cot of her son, a rat bit the petitioner on her elbow. Later she gave representation to the respondents and sought the abolition of rats from the hospital. Since there was no response, she filed a writ petition seeking compensation of Rs 2,00,000 for the injury suffered by her.

Analysis and Decision

High Court noted that the rat bite was said to have taken place on 23-1-2014. But the petitioner actually took treatment for the same only on 31-1-2014. The explanation given by the petitioner was that only when the swelling and pain increased, she took treatment.

In the medical receipt, it was seen that the duty doctor whose name and other details were not known or rather identifiable, had mentioned rat-bite as the nature of the treatment given.

Petitioner had also submitted newspaper reports of the said incidents, to which the Court stated that though the newspaper reports cannot be conclusive evidence, still the probability of the petitioner having suffered a rat bite can only be inferred as true owing to the reports. In fact, the Medical Superintendent of Government Rajaji Hospital when contacted by Indian Express had only stated that blockages in the drainage system laid to rat menace in the hospital.

The Bench observed that the fact that the petitioner had suffered a rat bite cannot be brushed under the carpet and stated to be a false statement. If it was a false statement, then responsible officers of the Government Rajaji Hospital at Madurai would have certainly given a rejoinder to the newspaper items.

“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”

 Compensation

Therefore, High Court held that the rat bite in Government Rajaji Hospital, Madurai was an unforeseen accident and when an accident occurs which is unforeseen, then compensation is automatically payable.

In view of no evidence being provided by the petitioner that she had to undergo a protracted treatment spreading over a number of days, Court decided to grant compensation of Rs 25,000 for the shock suffered by the petitioner being bitten by a rat in the middle of the night in hospital premises.

Liability

In Court’s opinion, the State of Tamil Nadu represented by the Principal Secretary, Health Department, Fort St George, Chennai was the ultimate official to grant compensation. [Muthulakshmi v. State of Tamil Nadu, WP (MD) No. 2283 of 2014, decided on 16-12-2021]


Advocates before the Court:

For Petitioner: Mr B. Dhanasekaran

For R1 to R-3: Mr J John Rajadurai

and R-5 to R-7: Government Advocate

For R-4: Mr R. Murali

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice R.K. Agarwal (President) and Dr S.M. Kantikar and Binoy Kumar (Members) decided a matter with regard to alleged medical negligence.

Issue for Consideration:

Whether non-referral of the patient to the Specialist or higher centre amounts to deficiency in service or medical negligence of the treating doctor/hospital?

Complainants Case

The complainant’s case was that their son Rahul (since deceased, referred to as the “patient”) about 17 years of age was hit by the train while crossing the railway track. It was alleged that the doctors did not carefully attend to the fatal head injuries. The Neurosurgeon was not available in the hospital and the patient was not referred to the higher centre. Ultimately, the patient died.

OPs denied negligence during treatment, and they treated the patient with all precautions.

On being aggrieved by the alleged carelessness, deficiency in service and medical negligence causing the death of Rahul, the complainants filed the consumer complaint before the District Forum.

Analysis, Law and Decision

Commission noted that the deceased had sustained grievous injuries due to hit by the train. Immediately after conducting relevant investigations and X-rays, he was shifted to the ICU and was kept under observation.

On perusal of the facts and circumstances of the present matter, Coram opined that the patient was evaluated by specialist doctors and was treated as per their reasonable skills and standard of practice.

Commission did not find any failure of duty of care or negligence from the OPs to refer the patient at higher centre, because it was a serious accident, and the patient was in critical stage.

It was held that the doctors took the required care as under the standard of practice to deal with the emergency situation.

Lastly, it was concluded stating that the patient was critical and unless his condition gets stabilized, shifting the patient to a higher center as not advisable. Hence, no deficiency in treatment was found by the treating doctors.

No merit was found in the revision petition. [Malhe Ram v. Jeevan Jyoti Hospital, 2021 SCC OnLine NCDRC 416, decided on 13-12-2021]


Advocates before the Commission:

 For the Petitioners: Mr. Naresh Kumar Gupta, Advocate

For the Respondent 2 – 4: Mr. Navin Kumar, Advocate

For the Respondent 5: Mr. Anand Vardhan, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad: Noting the fact that a patients Kidney was removed instead of the stones in the Kidney, Dr J.G. Mecwan (Presiding Member) expressing its’ opinion on medical negligence and hospital’s vicarious liability expressed that,

Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

Facts in Nutshell

Complainant stated that the present appellant was a hospital run by a charitable trust and Dr Shivubhai Patel was working as a Medical Officer/surgeon at the KMG General Hospital.

Complainant’s case was that the husband of the complainant approached the opponent with the complaint of back pain and difficulty in urination in the K.G.M Hospital and thereafter the Surgeon examined him and advised for USG. In the USG report it was revealed that the deceased’s left kidney was maltreated and therefore he was advised to go to some higher center for operation but as the complainant was unable to go there due to his financial condition, necessary medicines were prescribed by the opponent Doctor.

Complainant visited the opponent hospital with unbearable pain and therefore, a special investigation was done and the report was suggestive of 14mm stone with obstruction at P.U.J in left kidney and the right kidney was normal.

It is further submitted by the complainant that the operation was performed for removal of the stone from the kidney but instead of stone, the Kidney was removed by Dr Patel without any consent of her husband.

After the above incident, patient’s condition worsened, and he eventually died and therefore the complainant filed a consumer complaint against the opponent for gross medical negligence and deficiency in service before the District Commission.

District Commission partly allowed the complaint of the complainant.

Being aggrieved by the impugned order of the District Commission, Nadiad the original opponent 02 has filed the present appeal against the original complainant before this Commission.

Main Consideration:

Opponent Doctor removed the Kidney instead of removing the stone from the kidney.

Opponent 3 – Insurance Company contended that Opponent 2 Hospital had taken an insurance policy for the legal liability and therefore OP-3 was not at all liable for the payment of the medical negligence for the opponent Doctor i.e. employee of the opponent 2 Hospital.

Commission noted that that the policy was taken for legal liability for the indoor patients and outdoor patients of the hospital and therefore in the opinion of this Commission when policy was taken for the legal liability of the indoor and outdoor patients and not taken for professional Indemnity then medical negligence for the opponent 01 doctor i.e. employee of the opponent 02 – Hospital, Insurance Company cannot be held liable to make payment.

Hospital’s Liability

Coram expressed that Hospital was liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondent superior’ meaning ‘let the master answer’.

Concluding the matter, the Commission held that when Doctor is liable for the act of medical negligence then the Hospital is also vicariously liable for the act of Doctor and therefore District Commission Order was not just and proper, hence was modified as under:

“Opponent No. 02 – K.M.G. General Hospital is hereby ordered to pay Rs. 11,23,000/-(Rupees Eleven Lac Twenty Three Thousand Only), to the complainant with interest at the rate of 7.5% from the date of filing of the compliant till its realization and also ordered to pay Rs. 5000/- (Rupees Five Thousand Only) towards mental agony and cost of the complaint.”

[KMG General Hospital v. Devendrabhai K. Raval, Appeal No. 1457 of 2013, decided on 7-10-2021]


Advocates before the Commission:

Mr M.K. Joshi, L.A. for the appellants,

Mr V.K. Bhatt, L.A. for respondent no. 01, Mr M.K. Joshi, L.A. for respondent no. 02,

Mr. V.P. Nanavaty, L.A. for the respondent no. 03.

Patiala House Courts, Delhi
Case BriefsDistrict Court

Patiala House Courts, New Delhi: While addressing a case of medical negligence Prayank Nayak, MM-01, expressed that doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment

Complainant sought summoning of accused namely Dr Ram Manohar Lohiya, Hospital, New Delhi, CMO, Dr Ram Manohar Lohiya, Hospital and Dr Dinesh, Dr Ram Manohar Lohiya Hospital for offence punishable under Sections 270, 272, 326, 336, 338 of Penal Code, 1860.

Victim was aged about 3 months when she developed fever, cough and bronco pneumonia for which she sought treatment at OPD of RML. She was administered antibiotics and infusion intravenously. It was alleged that due to faulty administration of injection in a rash and negligent manner, victim developed gangrene.

After her examination by several doctors, her right hand had to be amputated from the wrist down. Hence it was stated that due to the negligence, commissions, and illegal omission of RML Hospital and its doctors they were liable to be punished under Sections 269, 270, 326 and 338 of the Penal Code, 1860 (IPC).

Analysis, Law and Decision

Law on Medical Negligence and Criminal Liability

Court expressed that the law of the land on the above stated was summed up in the decision of Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1,

“…To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”

 Delhi High Court in Hukam Chand v. State, 2016 SCC OnLine Del 4129, held that:

“6. Thus to proceed against a doctor the complainant is required to, even at the stage of summoning, prima facie show that the negligence is of such a kind that either the doctor was not processed of the requisite skills which he professed to possess or the negligence and recklessness was of a high degree which could be termed as gross.”

 Hence, Court expressed those doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment.

However, in the present matter, there was nothing on record to show that the treating doctors were grossly negligent while treating the victim. Even the Committee of the doctors did not mention that there was any negligence on the part of the treating doctors.

In Delhi High Court’s decision of Dr A.K. Banerji v. State, 2014 SCC OnLine Del 2322, while dealing with a criminal revision in a matter relating to medical negligence where the victim’s hand had to be amputated, held that since the Medical Council of India had opined that there was no negligence on the part of the treating doctor, summoning order of the magistrate for offence punishable under Section 338 IPC was liable to be set aside.

Bench held that since no sanction under Section 197 CrPC had been obtained, the doctors could not be summoned for the charges of medical negligence.

On finding no grounds for proceeding against the hospital and treating doctors arrayed as accused, the complaint was dismissed under Section 203 CrPC. [Gudia v. Dr Ram Manohar Lohia Hospital, CC No. 18745 of 2016, decided on 12-10-2021]

Gauhati High Court
Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

The instant petition was heard along with a suo motu case registered with regard to the barbaric incident which took place in Assam’s Hojai district. According to reports[i], family members of the deceased patient brutally thrashed a young doctor following the patient’s demise at a Covid care centre.

As far as the abovementioned incident was concerned, the police had completed its investigation, charge-sheet had been filed and as many as twenty-four persons had already been arrested so far. Evidently, in its earlier order, the Court had directed the authorities concerned to ensure installation of CCTV cameras in hospitals, where no CCTV camera has been installed.  And provide compensation to the Medicare Service Persons, who may be the victims of violence during discharge of their duties.

The Court, on being informed that almost all the Government Medical Colleges and the District Government Hospitals except some government and Model Hospitals were having CCTV cameras, directed that mere installation of CCTV cameras in the hospitals concerned was not enough and the CCTV cameras have to be connected to the nearest Police Station for further monitoring.[Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioner: S Islam

Counsel for the Respondent: D. Saikia

For the Gauhati High Court: S. Kalita, Standing counsel

[i] https://www.indiatoday.in/india/story/arrested-attack-junior-doctor-assam-hojai-ima-1809795-2021-06-02

Punjab and Haryana High Court
Case BriefsCOVID 19High Courts

Punjab and Haryana High Court: Opining that extreme technicality in times of pandemic is deplorable and may lead to fatalities, the Division Bench of Jitendra Chauhan and Vivek Puri, JJ., allowed the petitioner to import the ventilators without further delay.

Noticing the urgency of the matter and the fact that the instant petition was filed on 15-06-2020 yet the grievance of the petitioner had not been addressed by the authorities, the Bench opined that,

“This extreme technicality in difficult times of Covid-19 pandemic is highly deplorable. In fact, the State ought to have facilitated import of the ventilators. Thousands of people, who are lying admitted, are not getting oxygen or ventilators, which is very vital for the treatment of Covid patients.”

The Bench stated that the oxygen and ICUs are required here and now. Any delay by the administration in providing the ventilators would definitely result into fatalities. In the circumstances, when the nation is witnessing huge number of deaths everyday and certain deaths had happened for want of ventilators, the denial of permission to import the ventilators by the administration was not in the interest of the patients. Hence, the Bench ordered that the import of ventilators in question be allowed without further delay if the same carry certification from the manufacturer.

However, in the larger interest of the patients and to ensure that the ventilators received are as per the specifications prescribed by the competent authority, the Bench directed the petitioner to inform within 24 hours after their receipt to the competent authority to inspect the same with regard to quality thereof. On receipt of such information, the competent authority was directed to depute official concerned to determine the factum that the ventilators are fit to be utilized. The Bench added, if the ventilators are found to be deficient as per the specifications laid down by the Union Government, it shall not be put to use. Further, the petitioner was directed to pay all duties admissible on such goods and to use the same only after the certification by the competent authority.[S.B. Medical Systems v. Union of India, 2021 SCC OnLine P&H 1066, Order Dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Sudhir Malhotra

For Union of India: ASGI SP Jain with Sr.Adv. Dheeraj Jain

For Respondent 4: Adv. Anshuman Chopra

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of media reports that ten infants were killed in a fire that swept through the Sick Newborn Care Unit (SNCU) at Bhandara District General Hospital in Maharashtra on 09.01.2021. The fire reportedly broke out at around 1.30 am and the hospital administration could rescue only seven out of the seventeen children kept in the ward. A relief of Rs 5 lakhs has been announced by the state government from the Chief Minister’s Fund to each bereaved family and a state wide fire audit has also been announced. A case of accident has been reportedly registered and further investigation is being conducted.

The Commission has issued notices to the Chief Secretary and DGP, Government of Maharashtra calling for a detailed report in the matter within four weeks.

The Director-General of Police is also expected to inform the Commission about the outcome of the investigation being conducted by the police authorities. The report must contain the fire audit reports of various hospitals in the state as well as what measures have been taken or contemplated to be taken by the state against the erring or negligent officers/officials so that they cannot go with impurity.

Issuing the notices, the Commission has observed that the victim babies were in the custody of a state-run hospital where they lost life. Hence, the state cannot escape its responsibility. This is a serious issue of violation of human rights for which the accountability of the negligent officers/officials is required to be fixed, with retrospective effect. The monetary relief alone is not sufficient to compensate. Further, it is imperative to ensure that the support systems in various hospitals in the state must provide adequate care and attention to the patients for protection of their human rights.

According to the media reports, prima facie, the fire perhaps originated from the Air Conditioner and the victim babies died due to suffocation caused by the smoke. Reportedly, a committee headed by the Health Director will probe the incident and submit its report within three days. Electrical Department officials are reportedly investigating into the exact cause of the fire as reported by quoting the Superintendent of Police of Bhandara district.


National Human Rights Commission

[Press Release dt. 11-01-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and T.V. Anil Kumar, JJ. dismissed a petition seeking a writ of habeas corpus for production of petitioner’s friend – one Sumayya – ruling that there was no basis for allegations of illegal detention.

It was alleged that as per Sumayya’s facebook posts, she had been confined at a hospital by her mother and was being given unnecessary medications. When the petition came for admission, the Court directed the police to conduct a discreet enquiry into allegations of the petitioner, obtain a detailed medical report from the hospital regarding the mental status of Sumayya and also the details of treatment administered to her. Accordingly, a medical report, medical certificate and statements recorded from Sumayya were submitted to the Court.

It was diagnosed that Sumayya had a manic episode in the context of bipolar affective disorder and she was unlikely to receive treatment outside a hospital as she believed that her hospitalization was masterminded by her mother and hospital authorities were siding with her mother to “make her mentally ill”. At the time of the admission, Sumayya lacked the capacity to take an intelligent decision and faced a risk of untreated illness. However, after hospitalization, she had stabilized and regained her capacity for mental healthcare decisions. She was taking medication and had agreed to continue the same and also get psychological help.

She also stated that she has not been confined in the hospital by anyone and that she had only instructed the petitioner to file the instant petition as she intended to lead an independent life.

After interaction with Sumayya in Chambers, the Court opined that she was mentally stable and comfortable with her mother as well as with the atmosphere of the hospital where she was staying.

In view of the above, the petition was dismissed.[Manoj Joseph v. State of Kerala, 2018 SCC OnLine Ker 5265, decided on 11-12-2018]

Case BriefsForeign Courts

United Kingdom Supreme Court: A five-judge bench comprising of Lady Hale, Lord Reed, Lord Kerr, Lord Hodge, and Lord Lloyd-Jones while hearing an appeal pertaining to breach of duty held that the scope of the duty of care of a hospital extends to not providing misleading information.

The appellant was assaulted in the year 2010 on the back of his head by an unknown assailant post which his friend took him to Accident and Emergency Department (A&E department) at Mayday Hospital, Croydon which was managed by the respondent NHS Trust. Despite informing the receptionist about his head injury and the resultant severe headache, he was informed that there would be a wait of four to five hours before he could see a doctor. The appellant told the receptionist that he could not wait that long as he felt that he was about to collapse; to which the receptionist replied that if he did collapse, he would be treated as an emergency. After waiting for sometime, the appellant left the hospital but one hour later his condition worsened and he was taken to hospital again where it was revealed that he had suffered permanent brain damage.

The appellant brought proceedings against the respondent NHS Trust alleging breach of duty concerning the information he was given about the time he would have to wait before being seen by a doctor. It was brought on record that usually in such cases the waiting time is thirty minutes. The trial court held that it would be unfair to impose liability upon the respondent for harm arising as a result of the failure of the receptionist staff because the decision to leave was ultimately that of the appellant. Appeal against the said order was also dismissed on the ground that neither the receptionist nor the health trust acting by the receptionist owed any duty to advise about waiting times. Giving of incorrect information by the receptionist was not an actionable mis-statement and as such there was no causal link between any breach of duty and the injury. The present appeal arises against the order of the appellate court.

The court relied on judgment in Kent v. Griffiths, [2001] QB 36 and held as soon as the appellant had attended at the respondent’s A&E department seeking medical attention, provided the information requested by the receptionist and had been “booked in”, he had entered into a relationship of patient and health care provider, with the respondent which had a duty to care towards him. The scope of this duty extended to not provide misleading information which may foreseeably cause physical injury. While the actual position was that head injury complaints receive attention within thirty minutes, the appellant was told that he would have to wait for up to four or five hours to see a doctor. This information was incomplete and misleading and as such there was a negligent breach of duty.

On the aforesaid holding, the appeal was allowed and the case was remitted back to Queen’s Bench division for assessment of damages. [Darnley v. Croydon Health Services NHS Trust,[2018] 3 WLR 1153, decided on 10-10-2018]

Advance RulingsCase Briefs

Kerala Authority for Advance Ruling (Goods and Services Tax): The Authority for Advance Ruling (AAR), GST Department, Kerala comprising of B.G. Krishnan, Joint Commissioner of Central Tax and B.S. Thyagarajababu, Joint Commissioner of State Tax ruled that supply of medicines and allied items by a hospital through its pharmacy to the in-patients, being a part of composite supply of health care treatment, is not separately taxable.

The aforesaid ruling came on an application filed by Ernakulam Medical Centre (applicant), which sought clarification on GST liability on medicines supplied through hospital pharmacy to both in-patients and out-patients. The applicant is rendering medical services with professionals like doctors, nursing staff, lab technicians etc. Under the GST regime, health care services provided by a clinical establishment authorized medical practitioner or para-medics is exempted vide S.No.74 of Notification No.12/2017-CT (Rate) dated 28-06-2017. Since medicines supplied through the pharmacy to in-patients and out-patients under the prescription of the doctors is incidental to health care services rendered in a hospital, thus the applicant understood it to be beyond the ambit of taxation. However, for the sake of clarity, the applicant sought for an advance ruling on the liability of hospital for the supply of medicines and allied items through the pharmacy.

The Authority observed that until an in-patient is discharged, a hospital is expected to provide lodging, care, medicine, and food as part of treatment to him under its supervision. Such patients receive medical facility as per the scheduled procedure and have a strict restriction to ensure quality/quantity of items for consumption. Hence, the medicines or allied goods supplied to in-patients, being indispensable items and a composite supply for facilitation of health care services, is not taxable.

It was further noted that in case of an out-patient, a hospital only gives him a prescription which is only advisory in nature. The patient has absolute freedom to follow the prescription or not. Similarly, he has the freedom to procure the medicines or allied items prescribed, either from the pharmacy run by the hospital or from medicine dispensing outlets. The hospital reserves no control over his continuous treatment. Therefore, supply of medicines by a hospital run pharmacy to out-patients would be liable to be treated as an individual supply of medicine and hence it would not be covered under the ambit of health care services. Therefore, such supply of medicines and allied goods would be taxable.

On the aforesaid reasoning, the Authority held that supply of medicines and allied items by a hospital through pharmacy to in-patients would be exempted from tax, but supply of medicines to out-patients would be subject to taxation under the GST regime. [Advance Ruling No. Ker/16/2018, in the application filed by Ernakulam Medical Centre Private Limited, decided on 19-09-2018]