BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

FA  430 of 2013  against  CC 104/2012,  Dist. Forum, Mahaboobnagar

Between:

Dodakula Dr. Vijaya Kumar

S/o Late D. Hussainappa,

Occ: Medical Practitioner,

Now R/o.  Flat No. 401

Bhargav Enclave

Beside B.G. Apartments

New Bakaram, Gandhi Nagar

Hyderabad-500 080.                                   ***                         Appellant/

                                                                                                O.P. No. 2  

                                                                   And

1)  Smt. C. Chandramma

W/o Late Shankaraiah,

Occ: Coolie, R/o H.No.20-177,

Srinivasa Colony, Shadnagar,

Mahabubnagar District.                               ***                      Respondent/

Complainant

2)  S. Veerabadra Rao,

E.N.T. Surgeon,

C/o Teja E.N.T. Hospital,

Shadnagar. 

Mahaboobnagar Dist.                                 ***                       Respondent/

                                                                                                O.P. No. 1

Counsel for the Appellant:                          M/s.  V. Gourishankara Rao

Counsel for the Respondent:                       M/s.  M. Hari Babu (R1)

                                                                   R2 – Returned Un-claimed.

CORAM:     

          HON’BLE SRI  JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT

                          SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

&

                              SRI  S. BHUJANGA RAO,  HON’BLE MEMBER

Oral Order :  11/03/2014 

(Per Hon’ble Justice Gopala Krishna Tamada, President)

                                                                   ***

1)                This appeal is directed against the order dt.  21.1.2013 in CC 104 of 2012 on the file of Dist. Forum, Mahabubnagar whereby the complaint filed by the respondent herein was allowed and the appellant and Op1 were jointly and severally directed to pay Rs. 5 lakhs towards compensation and costs of Rs. 1,000/-.

2)                Brief facts are as under:

The complainant i.e., the respondent No. 1 who is the mother of the deceased C. Renuka filed the said complaint stating that her daughter developed ear pain and in that context, she was taken to the hospital run by Op1 where her daughter was advised to undergo minor surgery.  Immediately, her daughter was taken into the Operation Theatre where she was administered anaesthesia by Op2 and thereafter she was operated on the nose instead of ear.    Immediately, she developed complications, hence the complainant was advised to take the patient to Hyderabad for better treatment.    In the process, the patient i.e., the daughter of the complainant died.    As the said death was un-natural and un-timely, the complainant approached the Dist. Forum and filed the present complaint complaining medical negligence.   According to the complainant, her daughter was complaining ear pain whereas she was operated on the nose.   She developed severe complications and the same amounts to medical negligence.   Thus, she claimed total   compensation of Rs. 10 lakhs.

3)                 Notices were sent to the Opposite Parties but the said notices were returned un-served.    In those circumstances, the Dist. Forum ordered substitute service and accordingly notices were published in Eenadu Mahaboobnagar and Hyderabad editions.   The Opposite Parties have not chosen to put in their appearance, and contest the matter.    In those circumstances, the Dist. Forum after hearing the counsel for the complainant and also with the available material on record came to the conclusion that said death was solely on account of medical negligence, and the said doctors i.e.,  the surgeon and  the anaesthetist are jointly and severally liable for the same, and thus awarded an amount of Rs. 5 lakhs towards compensation. 

4)                 Appellant/Op2 i.e., the anaesthetist approached this Commission and filed this appeal assailing the said order. 

5)                  The main contention of learned counsel for the appellant/Op2 Sri V. Gourishankara Rao is that the appellant was never served with any notice, and in those circumstances, he had no opportunity to contest the matter.    He tried to impress upon us saying that the entire negligence was solely on the part of surgeon (Op1)  and Op2 anaesthetist cannot be found fault with.    According to him, initially, the appellant was residing at Dilsukhnagar and there after he shifted his place of residence to Domalguda and again to New Bakaram, Hyderabad.  He placed reliance on the passport and the bank pass book to establish that the appellant is not residing at the address given in the cause title.   

6)                 Per contra, Mr. M. Hari Babu, learned counsel for the respondent/complainant submitted that last known address was furnished in the cause title and as the notices were returned un-served, the Dist. Forum directed his client to take out substitute service and the same was also done.   Despite the same, the appellant has not chosen to contest the matter. 

7)                 Heard.

8)                 All these facts are very much available from the order impugned in this appeal.   The Dist. Forum has taken every care to see that the notices are served and when the same are returned, it ordered paper publication.    In those circumstances, we are of the considered opinion that the Dist. Forum has taken every endeavour to see that the notices are served on the Opposite Parties.    Hence, we do not find fault with the order passed by the Dist. Forum.    However, the fact remains that the appellant/Op2 was not heard because of his change of residence.    In those circumstances, we are of the view that the appellant/Op2 may be given an opportunity to contest the matter.   Accordingly, we set-aside the order impugned in this appeal, and remand the matter back to the Dist. Forum for fresh consideration confined to appellant/Op2 only.   However, the said indulgence cannot be exercised without penalizing the appellant. 

9)                 Accordingly, this appeal is allowed, however, on payment of costs of Rs. 40,000/- (Rupees Forty Thousand Only) to be paid by the appellant/Op2 to the respondent/complainant i.e., Smt.  C. Chandramma, W/o. Late Shankaraiah within a period of four weeks from the date of receipt of this order.    After ascertaining the fact that said costs of Rs. 40,000/- are paid to the respondent/complainant, the Dist. Forum may afford an opportunity to the appellant/Op2 to file his written version, affidavit evidence etc., and thereafter decide the case afresh in accordance with law.    Both parties are directed to appear before the Dist. Forum producing the copy of the order on 9.4.2014.    It is made clear that no notice will be issued to the parties by the Dist. Forum and on their own they shall appear before the Dist. Forum on 9.4.2014. 

1)      _______________________________

PRESIDENT        

2)           ________________________________

MEMBER  

3)           ________________________________

MEMBER  

*pnr

UP LOAD – O.K.