ORDER
B.K. Taimni, Member
1. These two appeals have been filed by both the parties against the order of the State Commission allowing the complaint filed by the complainant, Mrs. Saroj Rani & others – widow, children and parents of the deceased Shri Ravinder Kumar.
2. Facts necessary to appreciate the case are that the deceased Ravinder and his wife went to one, Dr. Soni – their Physician – for check up/treatment. Late Mr. Ravinder Kumar complained to the Doctor about pain in abdomen which he got the night before. The doctor diagnosed this to be a case of Left Rental Colic and prescribed the following medicines:-
i) Cap Spasm Proxyvon (Pain Killer)
ii) Inj. Proluton
iii) Lig. Citrlka and
iv) Calcurosin
3. The doctor had advised that injection to be taken intramuscularly. According to the complainant the deceased went to purchase those medicines from Jagdish Medical Hall (Chemist). The said injection was given by the Chemist and was advised to get it injected from the Chemist’s father, Dr. Sham Lal who runs a clinic adjacent to the Chemist shop. This injection was administered intravenously as a result of which his body started trembling and within few minutes Ravinder Kumar died on the spot as a result of the injection being administered intravenous as against the common knowledge that the injection is to be administered intramuscularly. It is the negligence on the part of Dr. Sham Lal which resulted in the untimely death of Shri Ravinder Kumar at the age of 32. Alleging negligence on the part of the Respondents a complaint was filed by the widow, children and parents before the State Commission who after hearing both the parties, material produced and going through the affidavits filed by the parties directed the Respondents to pay Rs. 6 lakh – Rs. 2 lakh to the Complainant, widow of late Shri Ravinder Kumar, Rs. 1 lakh each to the three children and Rs. 50,000/- each to the parents and cost of Rs. 5000/-
4. It is against this order that both the parties have filed two separate appeals. While Appeal No. 132/01 filed by the Respondents is for setting aside the order of the State Commission, the other appeal No. 163/01 has been filed by the Complainant for enhancement of compensation.
5. It is argued by the ld. Counsel for the Appellant in F.A. No. 132/01 that the Complainants are not consumers within the meaning of CPA as the deceased had not hired the service of the Ist Respondent for any consideration. He also argued that it is not proved whether the injection Proluton Depot was prescribed vide the said prescription As per prescription it is Proluton whereas the complaint relates to “Proluton Depot” as also that the injection is prescribed for females. He also argued that there is no evidence on record to prove the point that the said injection was purchased from the 2nd Respondent and administered by the 3rd Respondent. The mere presence of 1.5 C.M. circular reddish mark found at the time of post-mortem is not enough to prove that the injection was administered by Respondents. State Commission has erred in relying upon the testimony of Jagir Singh, Jagan nath and the Ramesh Chand for the deceased on this point. It was argued by him that there is no material on record to prove the death of Ravinder Kumar occurred due to administration of injection intravenously. The evidence of Dr. Soni, who prescribed the medicine is not reliable as the has to protect himself himself. It was also argued by him that all the Respondents are distinct entities and one was not competent to give instruction to the other – so as to make one vicariously liable for action of the other. The quantum of relief was also not supported by any material on record. On the other hand, it was argued by the Id. Counsel for the Appellant in FA No. 163/01 that the fact remains that the deceased was a healthy man of 32, went for injection to the clinic of Ist Respondent and instead of administering it intramuscularly, it was administered intravenously resulting in his immediate death. The Post-mortem Report supports his case and the evidence on record also supports his case. The State Commission was quite correct in holding the Respondents guilty of negligence but the Compensation awarded is too inadequate especially for the small children who will require more funds to complete their education. The State Commission also failed to grant any interest on the amount of compensation. Hence, the amount of compensation be increased and the Respondents be ordered to pay the decreed amount to the Complainants with interest.
6. We have heard the arguments and perused the material on record First we deal with F.A. No. 132/01. The first point raised by the Appellant/Respondents relates to the question of the complainants being a consumer or not, as no consideration was paid. To say the least, it is a very unfortunate argument. How does a deadman pay? Here is a case of person who comes to get an injection administered, it is done and person dies within minutes. Who should have paid the consideration. It is not denied that the deceased did go to the clinic, the injection was administered but did not survive to pay. We find the argument totally unacceptable and reject it with contempt it deserves. Second point raised by the Appellant/Respondent relates to whether the prescription given by Dr. Soni pertains to the deceased and if so what was prescribed. We see on record the prescription. It is true that we we see certain over-writing in the first word but the affidavit of Dr. Soni should set to rest, both the points raised. Firstly, as the deceased complained of pain in stomach night before, after examination and exercising his professional judgment after proper diagnosis, prescribed the four medicines. The medicines given out in the affidavit and the prescription are the same except that this word “Depot” does not appear as a suffix to ‘Proluton’ in the prescription. Doctor Soni has said in his affidavit that he had prescribed this injection as it is known to be a muscle relaxant. It is good for females but also helps in relieving the colic pain which was the case of deceased. No evidence has been brought on record or Dr. Soni cross-examined to contradict him in any of these points. We see no merit in this argument. Next point raised is the injection “Proluton Depot” was at all injected. The post- mortem report is clear that this was a 1.5 Cm Circular reddish mark on the deceased. It is denied by the Ist Respondent in his affidavit that any injection at all was administered to the deceased. On the one hand there is an injection mark on the body the deceased. Dr. Soni in his affidavit has stated that he prescribed these medicines after that the deceased never came back. Dr. Soni has not been examined at all. On the other hand there are affidavits of Sh. Jagir Singh and Jagan Nath, stating that they saw the injection being administered on the person of the deceased, which fact they also told immediately to the father of the deceased and is corroborated by him. The deceased is not there to give first hand evidence. What is left is circumstantial evidence and the chance witnesses, which is precisely how the case stands here. We are left in no doubt, based on the available evidence, that injection as administrated to the deceased in the clinic of the Ist Respondent. We have also the evidence of a qualified surgeon as MBBD + M.S. that injection was to be administered intramuscularly and if administered intravenously, that it can cause combolism of heart of the patient which stops circulation of blood to the heart. There is nothing on record to contradict this expert professional opinion. In his affidavit, Dr. Soni has also stated that Mr. Ravinder Kumar was not having any heart problem’. Dr. Soni should know better as the deceased and his wife were attending his clinic off and on. Based on circumstantial evidence and the material on record, we are unable to appreciate the merit in this argument. The fact remains that the late Ravinder Kumar goes to the clinic of the Ist Respondent and dies there in a short time. Post-mortem shows 1.5 Cm Circular reddish mark — mark of an injection., Dr. Soni has not administered it as per his affidavit which is not rebutted. As per expert opinion — again unrebutted — that if the injection Proluton Depot is administered intravenously it stops blood supply to the heart. The death has to be attributed to the negligence of the Ist and IIIrd Respondent. We see no merit in the arguments advanced by the Respondents that their clinic was sealed and no incriminating material was found in the clinic linking the administration of injection to the patient. It is to be seen that there was a large gap between the death of Shri Ravinder Kumar of his further action to seal the shop. Much could have happened during this gap-in-time.
7. We see no merits in the appeal filed by the Appellant/Respondent, Shri Sham Lal and Ors. except to state no negligence has been found against the Respondent No. 2 hence no liability can be fastened on him.
8. In appeal No. FA 163/01, prayer is for enhancement of compensation and award of interest at this amount. We see that in the complaint, the complaints had asked for a compensation of Rs. 15 lakh. The deceased as an Income Tax payee. We have not been told that as to how much was the Income Tax the deceased was paying. We also see that no grounds or material has been provided in support of the claim of Rs. 15 lakh or for enhancement of claim amount in appeal. We also see that in its order the State Commission has taken paints to award compensation of Rs. 1 lakh for each of the three children; the amount has to be kept in Fixed Deposit and the interest amount is to be utilised for education and related purposes. Thus, we see that this particular aspect relating to education for the children i.e. the very basic ground for enhancement of compensation, has already been taken care of. We find the compensation granted by the State Commission to be just and equitable keeping in view the facts of circumstances. We find no merit in this appeal except that the Complainants shall be entitled to interest 12% on the amount of compensation from the date of filing the complaint before the State Commission. Appeal is allowed in part and the order of the State Commission is modified only to the extent indicated above. Rest of the well reasoned order of the State Commission is maintained.
9. No orders on costs.