KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.406/06, 424/06 & 489/06
COMMON JUDGMENT DATED: 30-09-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.M.K. ABDULLA SONA : MEMBER
APPEAL NO.406/2006
M/s M.O.S.C. Medical Mission-
Eye Hospital, Kariambadi,
Via Meenangadi, S.Batheri Taluk, : APPELLANT
Wayanad Dist, R/by Secretary,
M.O.S.C. Medical Mission Eye Hospital.
(By Adv:Sri.Abdulla Sait)
Vs.
1. Abdul Jamal,
S/o Kunhammed, Meppathachalil House,
Madakkara, Nenmeni, Amsom Desom,
S.Bathari Taluk, Wayanad Dist.,
Kerala.
(By Adv:Sri.Prasanth)
2. Dr.P.I.Mohan, Director,
M.O.S.C. Medical Mission Eye Hospital,
Kariambady (Via) Meenangadi,
S.Batheri Taluk, Wayanad Dist,
(By Adv.Sri.M.C.Suresh)
3. Dr.Alex George, Associate Consultant,
M.O.S.C. Medical Mission-
Eye Hospital, Kariambadi,
S.Batheri Taluk, Wayanad Dist.
(By Adv:Sri.George Cheriyan Karippaparambil)
APPEAL NO.424/2006
Dr.P.I.Mohan,
St.Gregorious Hospital, : APPELLANT
Parumala, Pathanamthitta
(By Adv.Sri.M.C.Suresh)
Vs.
1. Abdul Jamal,
S/o Kunhammed, Meppathachalil House,
Madakkara, Nenmeni, Amsom Desom,
S.Bathari Taluk, Wayanad Dist.,
Kerala.
(By Adv:Sri.Prasanth)
2. M.O.S.C. Medical Mission Eye Hospital,
Kariambady (Via) Meenangadi,
S.Batheri Taluk, Wayanad Dist,
(By Adv:Sri.Abdulla Sait)
3. Dr.Alex George, Associate Consultant,
M.O.S.C. Medical Mission-
Eye Hospital, Kariambadi,
S.Batheri Taluk, Wayanad Dist.
(By Adv:Sri.George Cheriyan Karippaparambil)
APPEAL NO.489/2006
Dr.Alex George, Associate Consultant,
M.O.S.C. Medical Mission-
Eye Hospital, Kariambadi,
S.Batheri Taluk, Wayanad Dist.
(By Adv:Sri.George Cheriyan Karippaparambil)
Vs.
1. Abdul Jamal,
S/o Kunhammed, Meppathachalil House,
Madakkara, Nenmeni, Amsom Desom,
S.Bathari Taluk, Wayanad Dist.,
Kerala.
(By Adv:Sri.Prasanth)
2. M.O.S.C. Medical Mission Eye Hospital,
Kariambady (Via) Meenangadi,
S.Batheri Taluk, Wayanad Dist,
(By Adv:Sri.Abdulla Sait)
3. Dr.P.I.Mohan, Director,
M.O.S.C. Medical Mission Eye Hospital,
Kariambady (Via) Meenangadi,
S.Batheri Taluk, Wayanad Dist,
(By Adv.Sri.Laxman)
COMMON JUDGMENT
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
The appellant in Appeal.406/06 is the 1st opposite party hospital and the appellant in Appeal 424/06 is the 2nd opposite party, Director cum Head of the unit and the appellant in Appeal.489/06 is the 3rd opposite party doctor in OP.111/2000 in the file of CDRF, Wayanadu. The appellants are under orders to pay a sum of Rs.2,25,000/- as compensation with interest at 9% from 17.4.2006 and cost of Rs.3000/-.
2. It is the case of the complainant that he is working as an A/C Mechanic at Qatar from 1988 onwards. While working he was hit in the eye by a flying piece of nail. Initially he was treated at Dr.Susan’s Clinic, Doha. He was advised to undergo further treatment and surgery. He returned to India for the above purpose as the treatment at Qatar was very expensive. He arrived at Calicut on 8.9.99 and got treated at the 1st opposite party hospital. After examination he was told that there is only a wound in the eye and he underwent treatment for 2 months. As there was no improvement he went to Aravind Eye Hospital, Coimbatore wherein it was detected that there was a piece of nail in the eye. He was a patient for 6 days at the above hospital and underwent surgery to remove the piece of nail. After surgery also he was unable to return soon as follow up was required. His visa was cancelled and he lost his job as the sponsor felt that he was misusing his leave. As he had to leave the place of employment urgently he had left everything at Qatar and could not return to take back the same. In this regard also he lost about Rs.8.lakhs. All the same he has restricted the claim to Rs.5.lakhs as compensation.
3. The 1st opposite party hospital has filed version contending that the complainant was treated at the hospital only on 8.9.99. It is stated that he has not consulted the 2nd opposite party who is also the Director of the hospital. The complainant has in fact consulted Dr.Alex George, Associate Consultant. At the time he had brought to prescription dated:1.9.99 and referral letter dated:5.9.99 of Dr.Susan Philip. The 3rd opposite party had consulted the 2nd opposite party for a 2nd opinion on the diagnosis who confirmed it. On the same day he was referred to Little Flower Hospital, Angamaly for further management as the opposite party hospital was not having facilities or experts specially trained to conduct retinal surgery. The diagnosis was that there is a retinal hole and few inflammatory cells in the anterior chamber. The vitreous was clear and the patient was having 6/9 snellen vision in the injured eye. It is not mentioned in the referral letter to Dr.Susan Philip that there is a foreign body in the eye. The 1st opposite party is having 3 outpatient clinics at Kalpetta, Sulthan Bathery and Pulpally. In the above clinics only out patient treatment is provided and the records are entered in a booklet which is handed over to the patient. When the patient is treated at the hospital the relevant particulars will be entered in a separate file and is maintained in the hospital. It is also pleaded that Dr.Alex George is a necessary party. It is denied that there is any negligence on the part of the opposite parties which is a charitable institution.
4. The 2nd opposite party has filed version stating that he has not treated the complainant and hence the complaint is not maintainable against him. The 3rd opposite party, Dr.Alex George was subsequently impleaded.
5. The 3rd opposite party has filed version wherein it is stated that the complainant came to the hospital on 8.9.99 with a history of injury with a nail to the left eye sustained on 31.8.99. He brought the prescription of Dr.Susan Philip, Ophthalmologist of Qatar who was consulted on 1.9.99. She has diagnosed a retinal tear in the left eye and referred for further management. On examination using a slit lamp, direct and indirect ophthalmoscopies, a provisional diagnosis of traumatic uveitis (inflammation) with retinal hole left eye with suspected intra ocular foreign body was made. The 3rd opposite party took the 2nd opinion from the Chief Ophthalmic Surgeon of the hospital as there was no facility to detect intra ocular foreign body and to manage retinal injuries. The complainant was referred to a higher centre with a reference letter addressed to Little Flower Hospital, Angamally. Necessary oral steroids and topical antibiotics were given. It is seen that after a few days, the complainant went to the consultation clinic of the 1st opposite party and informed the opposite party that he is feeling better and at that time also the complainant was advised to go to a higher centre. It is denied that he underwent treatment with opposite parties for 2 months. He has denied any negligence on his part.
6. Evidence adduced consisted of the testimony of PWs 1 to 3, OPW1, Exts.A1 to A8, B1 to B3(a).
7. The Forum has found that the version of the 1st opposite party hospital and that of the 3rd opposite party doctor is not consistent. The case of suspected intra ocular foreign body in the left eye is not mentioned in the version of OP1 whereas in the version of OP3 the same is mentioned. In the treatment records produced by the complainant ie Ext.A2 the reference to Little Flower Hospital, Angamaly is not mentioned. The 1st opposite party has not mentioned anything about the existence of the case sheet in the hospital whereas 3rd opposite party has produced Ext.B3 wherein the reference to Little Flower Hospital, Angamaly is noted. It was also noted that it was found from Ext.A2 the hand book that he underwent treatment up to 22/10/99 at the Bathery Clinic. The finding is that the complainant was not told as to the presence of foreign body inside the eye and on account of the same the surgery was delayed for more than 2 months and that after surgery also he had to take follow up and that the same led to the cancellation of his visa. Rs.2.lakhs is awarded as compensation for the loss of job and Rs.25,000/- for the pain and sufferings.
8. We find that in Ext.B3(a), the particular page of Ext.B3 produced by the opposite parties a sketch of the injured eye and the portion where there is a hole in the retina is seen drawn. Retinal hole and suspected intra ocular foreign body and inflammation is noted. It is also mentioned that he was referred to Little Flower Hospital, Angamaly and that reference letter given. It is mentioned as the history as a piece of nail head came and hit in the left eye. Ext.B1 and B2 are the prescriptions of Dr.Susan Philip of Doha, Qatar. It is mentioned therein that the fundus showed retinal tear and was referred for further management. History of injury with nail is also noted. Ext.B3 is dated:8.9.99. It is pertinent to note that the 3rd opposite party doctor was impleaded subsequently. As noted by the Forum it is only in the version of the 3rd opposite party that the suspected presence of the foreign body in the eye is mentioned. In the version of the 1st opposite party, the above fact is not mentioned, although reference to Little Flower Hospital, Angamaly is mentioned. As noted by the Forum Ext.A2, the hand book of his treatment at the Bathery Clinic the subsidiary of the 1st opposite party contained the same sketch of the eye as in Ext.B3 as well as the other writings except the reference of Little Flower Hospital, Angamaly. As is noted by the Forum that in the cross-examination of OPW1, the 3rd opposite party he has admitted that the presence of the foreign body was confirmed. It was also found that the complainant was prescribed medicines on 30.9.1999 and was advised to appear for review after 10 days. Again on 22.9.99 he had consulted the doctor at the clinic and medicines were prescribed. The last visit was on 23.10.99. It is evident from Ext.A4 the treatment record of Aravind Hospital, Coimbatore that he was admitted on 18.11.99 as an inpatient therein and discharged on 22.11.99. The surgery was on 19.11.99. One of the doctors who treated the complainant at the Aravind Eye Hospital was examined as PW3 who has testified as to the requirement of the surgery at the earliest to remove the foreign body from the eye. OPW1 has admitted that Ext.A2 contained writings made at the 1st opposite party hospital also. OPW1 has admitted that he had prescribed the medicines when the complainant visited for the 2nd time. The above circumstances would indicate that the reference to Little Flower Hospital seen in Ext.B3(a) which is absent in Ext.A2 might have been incorporated subsequently or the above advise which is not recorded in Ext.A2 was not conveyed to the complainant. It is inconceivable that the complainant would have ignored the advise of OPW1 and remained at his native place fully knowing that a piece of nail remained inside his eye and also in view of the fact that he has to return abroad to earn his livelihood. It is in evidence that the required equipments for detecting the foreign body is available in the opposite party hospital. Evidently there was serious lapse on the part of the 3rd opposite party (OPW1) in not conveying to the complainant, the existence of the foreign body in his eye. In Ext.A2 the same is mentioned in short form which can be understood only by the doctors.
9. The evidence of PW2, one of the doctors of the Medical Board who issued Ext.A8 disability certificate wherein a temporary partial disability of 30% is noted, to the effect that temporary disability was caused on account of the surgery done was rightly held unbelievable by the Forum. We find that the finding of the Forum that there is lapse on the part of the 3rd opposite party is only to be sustained.
10. As to the finding, placing liability on all the opposite parties, the 2nd opposite party, the Director and Chief Ophthalmic Surgeon has contended that he had not treated the complainant. There is no dispute in this regard. The complainant has no case that he was treated by the 2nd opposite party. It is in evidence that he has only consulted the 3rd opposite party, OPW1. He has no role in the advice given by OPW1 to the complainant. Hence we find that the 2nd opposite party is liable to be absolved of the liability. We find that the 2nd opposite party cannot be foisted with the liability in the matter.
11. The version of the complainant that he was working abroad from 1988 and at the time of his leaving the place he was having a salary of around Rs.23,000/- per month stands not discredited as such. Ext.A6 is the copy of the letter from his sponsor cancelling the visa. It is mentioned therein that leave was extended many times and it cannot be extended any more. Ext.A6 contains the identity card issued by the immigration department of the Ministry of Anterior of the State of Qatar and the text in Arabic as well as its translation. Nothing has been brought out to disbelieve the genuineness of Ext.A6. The complainant has also produced the copy of his passport which has been marked as Ext.A7. In the circumstances we find that the direction to pay compensation of Rs.2.lakhs of the loss of job cannot be said to be excessive. Rs.25,000/- awarded for the pain and sufferings undergone is only reasonable. We find that no interference in the order of the Forum is called for.
In the result the appeals 406/06 & 489/06 are dismissed and Appeal.424/06 which is filed by the 2nd opposite party is allowed. The opposite parties 1 and 2 would be jointly and severally liable to pay the amount of compensation. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% per annum from 30.9.2011, the date of this order.
Office will forward the LCR along with a copy of this order to the Forum.
JUSTICE K.R. UDAYABHANU: PRESIDENT
M.K. ABDULLA SONA : MEMBER
VL.
