HXXX vs GOVT. OF NCT OF DELHI & ORS
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: March 19, 2024
+ W.P.(C) 786/2019 & CM APPL. 3478/2019
HXXX ….. Petitioner
Through: Dr. Amit George, Mr. A. Bhaumik, Mr. R. Bharat, Mr. A Suri, Mr. Shashwat Kabi, Mr Piyo Harold Jaimon, Ms. Suparna Jain, Advocates.
versus
GOVT. OF NCT OF DELHI & ORS ….. Respondents
Through: Mr. Rajeev Aggarwal, ASC with Mr. Prateek Badhwar, Ms. Shaguftha H. Badhwar, Ms. Samridhi Vats, Advocates.
CORAM:
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T (oral)
1. The present writ petition is filed under Article 226 of the Constitution for issuance of direction as per the prayer which reads as under:-
a. Directing the Respondents to comply with the recommendations made in the Enquiry Committee Final Report dated 08.07.2018;
b. Directing the Respondents to fully reimburse the amount of Rs.1,41,969/- which the petitioner incurred during his medical treatment and surgery at Jaipur Golden Hospital as a result of denial of treatment at BJRM & LNJP Hospitals;
c. Directing the Respondent No.4 to pay the wages of the Petitioner for the time he was on medical leave due to the accident as he had met with the accident in the course of his duty with Respondent No.4 and his treatment was delayed as a result of the negligence and undignified treatment meted out to the Petitioner by BJRM and LNJP Hospitals;
d. Directing the Respondents to pay compensation of Rupees 1 lakh for the trauma and pain caused by delay on the part of the Respondents;
e. Directing the Respondents to pay costs of this petition as quantified by the Hon’ble Court;
f. For any other or further orders as this Court may deem fit in the facts and circumstances of the case.
2. It is stated that the petitioner met with an accident on 09.08.2017 as a result of which he received injury on his left leg and left shoulder. The petitioner thereafter approached Babu Jagjivan Ram (BJRM) Hospital for treatment but he was denied proper treatment. The petitioner was further referred to Lok Nayak Jay Prakash Narayan (LNJP) Hospital since he needed urgent surgery. The petitioner was also not treated properly at LNJP Hospital and was discharged without being given any necessary treatment and raw plaster. The petitioner under these circumstances was compelled to approach the Jaipur Golden Hospital to undergo the surgery, for the removal of abscess on his left leg, and treatment for infection, resulting in a huge expenditure amounting to almost Rs.1.5 Lacs.
3. The petitioner being aggrieved filed a writ petition bearing W.P. (C) no. 9563/2017 which was disposed of vide order dated 30.10.2017. Thereafter, the petitioner filed an appeal vide LPA bearing no. 266/2018 to set aside the order dated 30.10.2017 wherein vide order dated 09.05.2018, the respondent no.1 was directed to set up an Enquiry Committee to hear the grievances of the petitioner and also to submit the report within 03 months. Accordingly, the report was submitted and the petitioner claimed the relief as mentioned hereinabove on the basis of the Inquiry Report which was the outcome of the order dated 09.05.2018 passed in LPA bearing no.266/2018.
4. Mr. Amit George, Advocate referred the Inquiry Report dated 08.07.2018 and argued that the petitioner suffered the loss of expenditure amounting to almost Rs.1.5 Lacs due to the negligence and duties of the doctors not being satisfactory. The petitioner is also entitled for compensation. The relevant findings of the Committee reads as under:-
Role of BJRM hospital
There is no discrimination of the patient for his HIV status. He was admitted in the hospital for treatment of fracture of his leg and was referred to LN Hospital as implant required for his treatment was not available in BJRM Hospital.
However, it was felt that referral and transfer of the patient was improper because while referring the patient to LN Hospital, referring doctor did not enquired from the counterpart doctors of LN Hospital, about the availability of implant and treatment facility before transfer. Reply of concerned doctors of BJRM hospital was unsatisfactory in this regard.
Role of LN Hospital
There is no discrimination of patient for his HIV status. He was kept under observation and discharged with an advice for Pre-Anaesthetic Check up (PAC) and follow up In OPD.
However, it was felt by the Committee that procedure adopted by doctors of LN Hospital was not satisfactory. When a patient was referred from another hospital, he should have been admitted first and further testing and PAC must have been done and necessary treatment must be rendered by LN Hospital after admission. Instead they chose to discharge the patient with fractured leg and asked the patient to report in OPD with PAC report. Patient felt neglected and in frustration approached private hospital, (Jaipur Golden Hospital) for surgery and further management.
The Committee concluded that though there was no discrimination of patient for his HIV status but he may be considered for compensation in lieu of treatment he had taken in private hospital.
In the meanwhile MD/IVIS of LN Hospital changed.
The final report is
The Committee concluded that though there was no discrimination of patient for his HIV status but he may be considered for compensation in lieu of treatment he had taken in private hospital.
5. Dr. Amit George, the counsel for the petitioner also referred to Nilabati Behera V State of Orissa and Others [(1993) 2 SCC 746] wherein it was held as under :
22. The above discussion indicates the principle on which the court’s power under Articles 32 and 226 of the Constitution is exercised to award monetary compensation for contravention of a fundamental right. This was indicated in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and certain further observations therein adverted to earlier, which may tend to minimise the effect of the principle indicated therein, do not really detract from that principle. This is how the decisions of this Court in Rudul Sah [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : (1983) 3 SCR 508] and others in that line have to be understood and Kasturilal [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 Cri LJ 144] distinguished therefrom. We have considered this question at some length in view of the doubt raised, at times, about the propriety of awarding compensation in such proceedings, instead of directing the claimant to resort to the ordinary process of recovery of damages by recourse to an action in tort. In the present case, on the finding reached, it is a clear case for award of compensation to the petitioner for the custodial death of her son.
6. Mr. Rajeev Aggarwal, Additional Standing Counsel for respondents without disputing the factual position referred to Inquiry Report dated 08.07.2018 and argued that as per the report there was no negligence on the part of the doctors of BJRM Hospital and LNJP Hospital and the petitioner was treated without any discrimination despite being HIV positive. Hence, the present petition is liable to be dismissed.
7. The Inquiry Report dated 08.07.2018 reflected that in BJRM Hospital, although the petitioner was not discriminated despite being HIV positive but referral and the transfer of the petitioner was improper since at the time of referring the petitioner to the LNJP Hospital, the concerned doctor did not inquire from the counter-part doctor of LNJP Hospital about the availability of the implant and treatment facility at LNJP Hospital before the transfer of the petitioner from BJRM Hospital to LNJP Hospital. In respect of the role of LNJP Hospital, it is mentioned that the procedure adopted by the doctors of LNJP Hospital was not satisfactory as the petitioner should have first been admitted and then further testing and PAC should have been conducted after which appropriate treatment should have been given by the LNJP Hospital to the petitioner.
7.1 The Inquiry Report reflects the negligence of the doctors both in BJRM Hospital and LNJP Hospital. It also reflects that the petitioner has suffered an expenditure amounting to Rs.1,41,969/- due to the positively identified negligence on the part of the doctors of BJRM Hospital and LNJP Hospital, which are stated to be under administrative control of the respondent no.1. The petitioner is entitled for reimbursement/recovery of Rs. 1,41,969/- from the respondent no.1. Accordingly, the respondent no. 1 is directed to reimburse the amount of Rs.1,41,969/- incurred as expenditure on medical treatment of the petitioner in Jaipur Golden Hospital.
8. The petitioner was forced to approach the Jaipur Golden Hospital due to the negligence of the doctors of both BJRM Hospital and LNJP Hospital. The petitioner is also entitled for nominal compensation from the respondent no.1. The petitioner is also entitled to the compensation of Rs.1,50,000/- besides the medical expenditure of Rs.1,41,969/-.
9. Accordingly, the respondent no.1 is directed to pay the amount of Rs.2,91,969/- within 04 weeks from today, failing which the respondent no.1 shall be liable to pay the simple interest @ 9% p.a. on the awarded amount till the date of actual payment. The petitioner is not entitled for any further relief.
10. The present petition along with pending application, stands disposed of.
DR. SUDHIR KUMAR JAIN
(JUDGE)
MARCH 19, 2024
j/abk/hvk
W.P.(C) 786/2019 0Page 1