The instant case was instituted on the basis of an application filed by the complainant/petitioner under Section 12 of Consumer protection Act, 1986 which was registered as Consumer Case No. 59/15 in this Forum.
The fact of the case as revealed from the petition as well as from the evidence is that the petitioner/complainant Nowshad Alam is a permanent resident of Uttar Aliganj School Para, P.O. & P.S. Islampur, Dist. Uttar Dinajpur within the jurisdiction of this Forum. On 08.04.15 when he and his mother were moving by a motor bike from Panjipara to his home. At that time a Wagnor vehicle dashed him. As a result of which he seriously injured. From the place of accident he and his mother were shifted to Islampur Hospital but at Islampur Hospital there was no adequate better treatment for such injury, as such he was shifted to a private nursing home known by the name Islampur Alam Nursing Home where he was treated by Dr. Mazhar alam. After X-Ray and on perusal of X-Ray report it was found that his right femur bone was fractured and for the treatment of fracture of right thigh bone Dr. M. Alam stated that he shall have to bring good doctor from Calcutta and Siliguri for operation purpose. Hearing such matter he intimated his family members and the family members talk with Dr.Alam and as per advice of Dr. Alam he was admitted to Alam Nursing Home on 08.04.15. On 08.04.15 after admission Dr. Alam prescribed different medicines and advice for pathological test. Accordingly pathological test was done and on perusal of the pathological report Doctor advice the complainant and his family members that on 12.04.15 the operation will be done by the different orthopedic doctors for which at that moment he shall have to deposit Rs.50,000/-. The family members collected the money and deposited Rs.50,000/- to the nursing home. But on 12.04.15 Dr. M. Alam himself operated the patient without any help of any orthopedic doctor and after operation he prescribed medicines. It has been stated in the petition of complaint that Dr. Alam is not a orthopedic doctor. Inspite of such fact he has taken fee for operation illegally. On 24.04.15 as per advice of doctor he was released from the nursing home. After discharge from nursing home he came to his house and after few days of rest in his house he understood that he cannot walk and his condition was same as before after the accident. There was no improvement after the operation. Thereafter the family members of the complainant took him to Dr.Arvind Kumar, Orthopedic Disease and Fracture Clinic on 01.06.15 At that time Dr. A. Kumar Stated that the operation was not correctly done and as per advice of Dr.A. Kumar he was admitted to a nursing home and at the time Dr. A.Kumar stated to his family members that for the purpose of operation Rs.1,00,000/- will be required and the family members collected the same amount with a great hard ship and deposited to the Ortho and Fracture Care Centre and operation was done on 01.06.15 and he was admitted there from 01.06.15 to 26.06.15. Thereafter, after full cure he was released from that nursing home. The complainant has claimed Rs.4,00,000/-for the cost of treatment and for compensation of Rs.5,00,000/- and Rs.10,000/- as litigation cost.
The petition has been contested by the O.P by filing written version denying all the material allegations as leveled against him contending inter alia that there was no negligence on the part of the O.Ps. Dr. Alam is confident of this operation and he is performing such operation from 1989. Dr. Ali Hyder, MBBS, D.Ortho assisted the case. Dr. Alam, M.S., General Surgeon can perform the Orthopedic surgery. Further case is that after discharge he never consulted with the doctor after discharge. So, considering such facts and circumstances the instant case is liable to be dismissed with cost.
In this case the petitioner/complainant Nowshad Alam himself was examined as P.W.1 and he was cross examined in the form of questionnaires. No other witness was examined on behalf of the complainant and he filed some documents as per firisti. On the other hand Dr. Mazahar Alam was examined as O.P.W.1 and he was cross examined. One Ehtasham Akhtar was examined as O.P.W.2 and he was cross examined. No other witness was examined on behalf of the O.Ps. The O.Ps also filed some documents as per firisti
Decision with reasons
At the time of argument the Ld. Lawyer for the complainant argued that the complainant Nowshad Alam met a road accident for which he was treated at Alam nursing home at Islampur for the fracture of femur bone in the right leg. According to the argument as advanced by the Ld. Lawyer of the complainant is that the operation was not at all successful as because after discharge from the nursing home and after waiting some time there was no improvement for which the complainant was taken to Dr. Arvind Kumar, Orthopedic Disease and Fracture Clinic.
The first point of argument is that if the operation was successful by Dr. Alam why the patient will again move to Dr. Arvind Kumar for operation and why the patient will bear further cost of operation. Next point argued by the Ld.lawyer of the complainant is that the operation was not at all successful and further he argued that there was negligence on the part of the doctor as because Dr. Alam is not an Orthopedic Surgeon why he took such operation though not being Orthopedic Surgeon.
It is to be mentioned that in this case the O.P personally argued this case. According to his argument he is M.S., General Surgeon and he is quite competent in doing such orthopedic operation as he has got best experience in this regard and he has performing more than 25 operations. Moreover, after discharge the patient did not carry out the advice rendered by him, as such proper improvement as regard to the unite of bone was not done. He further argued that he did not give any assurance to the patient or to the patient party that he will bring good orthopedic doctor from Calcutta and Siliguri.
Now let us consider whether there was any operation at the Alam Nursing Home or not. It is the admitted fact that Nowshad Alam was treated at Alam Nursing Home and his femur bone was operated by Dr.M. Alam. So there is no dispute that the operation was done at the nursing home. Now the dispute comes whether the operation was successful or not and whether the bone was not rejoin due to the latches of the Nowshad Alam/ complainant for non observing the direction of the doctor after release from the nursing home. Prima facie it is found that the operation was not successful as there was second time operation at Orthopedic Disease and Fracture Clinic by Dr.A.Kumar. In this regard the O.P. argued that no document has been proved by the complainant to prove that he was treated at Orthopedic Disease and Fracture Clinic but the Xerox copy of the treatment and discharge certificate of Orthopedic Disease and Fracture Clinic by which it has been seen that the patient was treated at Orthopedic Disease and Fracture Clinic by Dr.A. Kumar. It is fact that such document was not exhibited.
Next point argued by the O.P that Dr. A. Kumar has not been examined by the complainant. It is fact that Dr. A. Kumar was not examined by the complainant though the complainant took time for examining Dr. A. Kumar. But Dr. A. Kumar was not produced before the Forum by the complainant. It is the general sense that a doctor will not say against another doctor. So definitely Dr. A. Kumar did not come forward before the Forum to state that second time operation was done at Orthopedic Disease and Fracture Clinic.
Next point argued by the O.P is that in order to rejoin the femur bone 4 to 6 weeks are required. In this regard he refers medical book of Baily & Love’s Short Practice of Surgery, 26th Edition at page 369. From which it is found that femoral fractures in adults may took 12 weeks to unite and 24 weeks in total they as strong as they were before. On perusal of the record it is found that he was treated at the Alam nursing home from 08.04.15 to 24.04.15 i.e. he was treated near about 3 weeks. From the discharge certificate it is found that date of admission was 08.04.15 to 24.04.15 and operation was done on 12.04.15 and he was discharged following the advice for 10 days rest. It is not understood why the patient was discharged before 3 weeks though at the time of argument the O.P argued that the bone will unite after interval of three/ four weeks, why in the discharge certificate no such observation given by the doctor that he will take rest for 3 to 4 weeks. But no such direction or observation was found in the discharge certificate. So definitely it is also a latches and negligence on the part of Dr. M.Alam.
Another point argued by the O.P is that on 01.06.15 the operation was done by Dr.A. Kumar. According to the argument as advanced by the O.P is that by this time the bones will be united. So naturally there was no necessity to move to Dr.A. Kumar. But such argument is not tenable as because why the patient of their own cost will move to a 2nd doctor for better operation unless and until he felt discomfort and no result or improvement is found. From the evidence of P.W.1 it is found that he was treated at Orthopedic Disease and Fracture Clinic from 01.06.15 to 26.06.15 i.e he was treated near about 3 weeks at the Orthopedic Disease and Fracture Clinic. But on perusal of the record it is found that Nowshad was in the nursing home from 12.04.15 to 26.04.15 after operation i.e only 2 weeks. So definitely within the 2 weeks the bone of the adult cannot be united. How the doctor released the patient knowing fully well that the bone cannot be united by the gap of 2 weeks. So definitely it is one of the latches on the part of the Dr. Alam.
Next point argued by the O.P is that though the O.P is not an Orthopedic Surgeon but he is performing such orthopedic operation for a long time and by such experience he has the average degree of skill possess by him and by using his best experience and best judgement he under took the operation. So though not being an orthopedic surgeon he has acquired sufficient skill and experience in this regard. According to the argument advanced by the O.P is that he conducted more than 50 operations in this regard but not a single document has been produced before this Forum that he under took several operation like fracture of femur bone. So, the argument as advanced by O.P is not at all believable.
Medical professional are expected to exercise and provide reasonable degree of his skill and knowledge and also exercise reasonable degree of care in treating the patient. But no document has been produced by the O.P to show that he has reasonable degree and skill and knowledge about the operation of femur bone. In this regard the O,P wants to impress upon the Forum that in the case of medical termination of pregnancy the doctors who has no M.D in Gynecology and Obstetrics or D.G.O or a registered medical practitioner who has assisted MTP at least 25 cases in a recognize centre is considered to perform MTP. By such argument the O.P want to impress upon the Forum that though he is not an orthopedic surgeon but he has conducted more than 25 cases. So he will be qualified as an experience Orthopedic. But such argument is not at all tenable as because he has not produced any document to show that he performed more than 25 operation cases. So, considering such facts and circumstances it is found that there was latches and negligence on the part of the O.P.
Now, the next point is considered as to the point of compensation. The complainant has claimed Rs.4,00,000/- as compensation for treatment. But on perusal of the document it is found from the Xerox copy of receipts that Nowshad paid Rs.30,050/-, 800/-, 400/-, 400/-, 900/-, 12,800/- and 2050/-. Total amount comes to Rs.47,400/-. In this regard the O.P submitted that the amount was paid by the owner of the Wagnor but nowhere in the receipt we found that the amount was paid by or through the owner of the Wagnor. On perusal of the Xerox copy of receipt of Dr. A. Kumar dt.26.06.15 that Nowshad alam and his party paid Rs.87,875/-. Due to the negligence of Dr. alam the complainant had paid such amount to Dr.A.Kumar, as such Dr. Mazahar Alam is liable to pay the same amount also. So, the total amount comes to Rs.47,400/- + 87,875/- = 1,35,275/- for treatment and operation of the complainant.. Besides that he is entitled to get Rs.10,000/- as compensation for mental pain and agony and Rs.5,000/- for litigation cost. So, total comes to Rs.1,50,275/- ( Rupees one lac fifty thousand two hundred seventy five) only.
C.F. Paid is correct.
Hence it is,
O r d e r e d
That the instant consumer complaint being No. CC – 59/2015 be and the same is allowed on contest against the O.P but without any cost.
The complainants are entitled to get sum of Rs.1,35,275/- (Rupees one lac thirty five thousands two hundred seventy five) only as compensation for treatment. Besides that he is entitled to get Rs.10,000/- for mental pain and agony and Rs.5,000/- as litigation cost. Total amount comes to Rs.1,50,275/- ( Rupees one lac fifty thousand two hundred seventy five) only.
The O.Ps are directed to make the payment by A/C Payee cheque in the name of claimant or cash within one month from the date of passing of this order failing which it will carry interest at the rate of 5% per annum over the awarded amount from the date of default till the recovery. In the case of failure of payment, the petitioner/ complainant will have the liberty to execute the order for recovery of the amount as per provision of law.
Let a copy of this order be given to the parties free of cost.
