Tamil Nadu

StateCommission

FA/117/2017

Dr.Amudha, - Complainant(s)

Versus

1.T.Selvaraj S/o. R.Thiraviyam, - Opp.Party(s)

M/s.AAV Partners

15 Feb 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

              BEFORE :        Hon’ble Justice R. SUBBIAH                                PRESIDENT

                          Thiru R   VENKATESAPERUMAL                         MEMBER                        

                      

F.A.NO.117/2017

(Against order in CC.NO.43/2008 on the file of the DCDRC, Thiruvallur)

 

DATED THIS THE 15^th DAY OF FEBRUARY 2023

 

Dr.Amudha

St. Antony’s Hospital                                              M/s. AAV Partners

Madhavaram,                                                              Counsel for

Chennai – 600 060                                          Appellant / 2^nd opposite party

 

 

                                                         Vs.

1.     T. Selvaraj

        S/o. R.Thiraviyam

        No.4, Subiksha Apartments                                M/s. A.R.Suresh

        St. Mary’s School Road                                         Counsel for

        Sembium, Chennai                                    1^st Respondent/ Complainant

 

2.     St.Antony’s Hospital

        Madhavaram, Chennai- 600 060

 

3.     Dr.L. Lakshman Saravan

        C/o. St. Antony’s Hospital

        Madhavaram,                                                R2 & R3 Given up

        Chennai – 600 060                2 & 3 Respondents/ 1 & 3 Opposite parties

 

        The 1^st Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission allowed the complaint. Against the said exparte order, this appeal is preferred by the 1^st opposite party praying to set aside the order of the District Commission dt.7.7.2015 in CC. No.43/2008.

 

          This petition is coming before us for hearing finally today.  Upon hearing the arguments of the counsel appearing on bothsides, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order in the open court:

 

 

JUSTICE R. SUBBIAH ,  PRESIDENT  (Open court)

 

1.      The 2^nd opposite party before the District Commission is the appellant herein.

 

2.       The case of the complainant before the District Commission is that the complainant’s wife Mrs.S.Mala, was admitted in the 1^st  opposite party hospital, on the advice of the 2^nd opposite party, for undergoing an operation for removing the fibroid in her uterus. The 3^rd opposite party is the anesthetist. The duration of the said operation had been fixed only for half an hour.  Eventhough the complainant’s wife was taken to the operation theatre on 6.6.2007 at about 9.00 a.m., she was not brought out of the theatre till 4.00 pm.  After the persistent enquiry of the complainant, it was informed that the complainant’s wife had cardiac arrest within 10 minutes after starting of the operation, and due to that there was low pressure and also no supply of oxygen to the brain and consequently she had myoclonic fits and was unconscious. After giving some treatment for the same, the operation was performed.  But the complainant’s wife had not regained conscious.  At about 9.30 p.m she was shifted from 1^st opposite party hospital to Apollo Hospital at Poonamallee High Road, Kilpauk.  There she was kept with ventilation and life support through supply of oxygen so as to save the life of her.  However, there was no improvement on her health condition and she continued to be in the stage of coma.  The complainant had to spend Rs.20,000/- per day in Apollo Hospital, where she stayed for 8 days.  Because of the negligence on the part of the opposite parties, the complainant’s wife made to suffer.  Thus alleging negligence on the part of the opposite parties, the complainant filed a complaint before the district Commission, praying for a direction to the opposite parties to pay a sum of Rs.20,00,000/- towards compensation for deficiency in service.

 

3.       The  Opposite parties though appeared though counsel before the District Commission, have not filed their version, and remained absent, hence an exparte order was passed in favour of the Respondent/ complainant, directing all the opposite parties jointly and severally to pay a sum of Rs.11,00,000/- towards compensation alongwith interest @10% p.a., and cost of Rs.5000/-.   Aggrieved over the said exparte order, this appeal has been preferred by the 2^{nd t} opposite party as appellant herein.

 

 4.      The learned counsel for the appellant would contend that the treatment given to the patient was strictly along the lines as prescribed by the medical protocol and medical literature.  The Apollo Hospital had clearly stated in their report that “No gynaec intervention suggested”.  Hence it is clear that there was no negligence in the surgery performed.  Without any evidence that too in a case of allegation about the medical negligence, the District Commission had awarded a huge compensation, which is not justifiable.

The learned counsel would further contend that due to the change in the Administrator on four occasions at the hospital of the 1^st opposite party, the Director of the Hospital was not informed about the case, and only on receipt of the order the appellant was informed about the case.  Therefore the non-appearance before the District Commission by the appellant is neither willful, nor wanton.  If an opportunity is provided, the appellant has a fair chance of succeeding the case.  Thus prayed for an opportunity to contest the matter on merit. 

 

6.       On careful consideration of the submissions and on perusal of records, we feel that there is some force in the arguments of the appellant/ 2^nd opposite party.  Accordingly, considering the nature of the complaint, which is based on medical negligence, deciding the case after considering bothside evidence would always be justifiable. On considering the facts and circumstances of the case, we are inclined to allow this appeal on imposing certain cost, and by way of order dt.2.2.2023 we have directed the appellant/2^nd opposite party to pay a sum of Rs.3000/- as cost to the legal aid account of the state commission, on or before 14.2.2023, which was complied with.  Hence this appeal is allowed today by remanding the complaint back to the District Commission for fresh disposal.  

 

7.       Since the other opposite parties have also preferred separate appeals, against the same order impugned, the order of the District Commission is hereby ordered to be setaside.

 

8.       In the result, the appeal is allowed by setting aside the order of the District Commission, Thiruvallur in C.C.No.43/2008 dt.7.7.2015, and the matter is remanded back to the District Commission, Thiruvallur, for fresh disposal according to law on merit.

Parties are directed to appear before the District Commission, Thiruvallur on 15.3.2023, for taking further instructions. On which date itself, the appellant/2^nd opposite party shall file not only the vakalat, but also the written version, proof affidavit, and documents if any. The District Commission is directed to dispose of the complaint, within three months, according to law on merit.  

The amount deposited, by the appellant, shall abide the order of the District Commission, in the original complaint, on merit.

 

 

 

   R   VENKATESAPERUMAL                                                       R. SUBBIAH

               MEMBER                                                                             PRESIDENT