TMI Blog1998 (3) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commission alleging that the minor was being treated at a nursing home in Noida in December 1993. As there was no improvement in his health the said minor was brought to M/s. Spring Meadows Hospital, appellant in Civil Appeal No. 7708 of 1997 on 24-12-1993. In the hospital the patient was examined by the Senior Consultant Pediatrician, Dr Promila Bhutani and on the advice of the said doctor the patient was admitted as an in-patient in the hospital. The doctor made the diagnosis that the patient was suffering from typhoid and intimated the parents that medicines have been prescribed for the treatment of the typhoid fever. On 30-12-1993 at 9.00 a.m. Miss Bina Matthew, nurse of the hospital asked the father of the minor patient to get the injection -- Inj Lariago -- to be administered intravenously to the minor patient. The father of the minor child purchased the medicine which was written down by the nurse and gave it, whereupon the nurse injected the same to the minor patient. The patient, immediately on being injected collapsed while still in the lap of his mother. It was further alleged that before administering the injection the nurse had not made any sensitive test to find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. On behalf of the appellants objection was filed before the Commission taking the stand that no payment having been made it cannot be said that the services of the hospital have been availed for consideration and as such the complainant is not a consumer within the definition of Consumer in the Consumer Protection Act, 1986. It was further stated that there has been no deficiency or negligence in service on the part of the doctors of the hospital and the negligence, if any, is on the part of the nurse who misread the prescription. It was also contended that immediate steps have been taken by Dr Dhananjay as well as Dr Mehta and the hospital authorities had summoned three specialists to examine the patient. It was further stated that the patient was taken to the All India Institute of Medical Sciences by the parents for better treatment but on being discharged from the Institute the hospital authorities on sympathetic consideration readmitted the child and are taking all possible steps and giving all possible treatment without any payment and at no point of time there has been any negligence on the part of the doctors attending the minor child in the hospital. It was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in pursuance of such order the said minor was examined and a report was received by the Commission from the Medical Superintendent, Safdarjung Hospital, New Delhi. The Commission also examined witnesses including Dr J.S. Nanra and Dr A.S. Ahluwalia who testified that on account of a medicine having been injected the minor suffered from cardiac arrest on account of which the brain has been damaged. On the basis of the oral and documentary evidences on record the Commission came to the conclusion that the child had suffered from cardiac arrest and cause of such cardiac arrest was intravenous injection of Lariago of high dose. The Commission also came to the conclusion that there has been considerable delay in reviving the heart of the minor child and on account of such delay the brain of the minor child got damaged. On the question of the negligence of services the Commission came to the conclusion that there was a clear dereliction of duty on the part of the nurse who was not even a qualified nurse and the hospital is negligent having employed such unqualified person as nurse and having entrusted a minor child to her care. The Commission also came to the conclusion that Dr Dhanan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, he becomes the consumer and consequently no compensation can be awarded in favour of the parents of the consumer and according to the learned counsel it is apparent from the provisions of Section 12(1)(a) of the Consumer Protection Act. The learned counsel lastly contended that under Section 14(1)(d) of the Act the Commission would be entitled to pay such amount as compensation to the consumer for any loss or damage suffered by such consumer and in the case in hand the minor child being the consumer the Commission was not competent to award compensation to the parents for the mental agony they have suffered. The learned counsel for the insurer-appellant in the other appeal vehemently contended that the insurer cannot be held liable to indemnify the hospital who is the insured as the said hospital had employed unqualified people to treat the patients and the direction of the Commission that the insurer would indemnify the insured is unsustainable in law. But we are not in a position to examine this contention advanced on behalf of the learned counsel appearing for the insurer in view of the limited notice issued by this Court. It would not be open for us to entertain this questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the existing evils of the ordinary court system. The Act gives a comprehensive definition of consumer who is the principal beneficiary of the legislation but at the same time in view of the comprehensive definition of the term consumer even a member of the family cannot he denied the status of consumer under the Act and in an action by any such member of the family for any deficiency of service, it will not be open for a trader to take a stand that there is no privity of contract. The Consumer Protection Act confers jurisdiction on the Commission in respect of matters where either there is defect in goods or there is deficiency in service or there has been an unfair and restrictive trade practice or in the matter of charging of excessive price. The Act being a beneficial legislation intended to confer some speedier remedy on a consumer from being exploited by unscrupulous traders, the provisions thereof should receive a liberal construction. 9. In the case in hand we are dealing with a problem which centers round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such organisations who in the garb of doing service to the humanit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Jordan, (1981) 1 All ER 267, (1981) 1 WLR 246 HL an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiff's head to become wedged with consequent asphyxia and brain damage. The trial Judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasising that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the views of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Fraser pointed out thus: The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2(1)(d). In the said clause a consumer would mean a person who hires or avails of any services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the Act. 13. So far as the second question is concerned, the contention of the learned counsel for the appellant is that Section 14 being the provision authorising the Commission to pass appropriate orders under one or more of the Clauses (a) to (i) and Clause (d) alone being the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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