IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

 Monday the 30^th day of September 2024

Filed on: 08.04.2024

Present

1. Smt. P.R.Sholy, B.A.L, LLB  (President in Charge)
2. Smt.  C.K.Lekhamma . B.A. LLB (Member)

In

CC/No.158/2024

     between

ORDER

Smt.C.K.LEKHAMMA (MEMBER)

Complaint filed u/s 35 of the Consumer Protection Act, 2019

1. Complainant’s case briefly stated is as follows:-

The complainant is the daily wage worker and he is the primary earner for the family have no other source of income.  On 22/12/2023 the complainant went to the Deva Hospital & Clinical Laboratory, Arattupuzha due to high fever and consulted the 3^rd opposite party, who prescribed medication includes antibiotics and injections in the  treatment plan.  The 3^rd opposite party was administered for taking injections namely Avil & Lnj Deri/Dexona.  The injection was given by the 4^th opposite party in the left side of the hip without due care, caution and attention.  Immediately after the injection the complainant complained of pain to the 3^rd opposite party and he replied that it was quite normal and the pain will be over in a short time.  Payment of the said service was made through an online transaction using Google Pay.

2. The next day, swelling was seen in the injected area and the pain started.  The pain led the complainant to return to the hospital on 01/01/2024 and inform the matter to the 3^rd opposite party.  He prescribed additional medicines and he said that it was common result of the injection.  By the next day 02/01/2024 the hip pain worsened to the point even normal walking also challenging.  So, in the morning of 03/01/2024 the complainant was taken to the Kayamkulam Government Hospital (Taluk Hospital, Kayamkulam). After observation the complainant was admitted as IP No.44.  The doctor examined the complainant and said that it was happened due to careless mode of application of injection by the nurse.  The doctor recommended a Gluteal abscess surgery and which was done on 07/01/2024.  The complainant was discharged on 15/01/2024 with advice for two months of complete rest and daily dressing of the wound area. 

3. After being discharged he went to the Government Fisheries Hospital Valiazheekal, daily for two months to have his wound dressed, as advice by the doctor and he also followed special diet, consuming supplement tablets and weekly checkups.

4. The complainant is a daily wage worker and his income is the only source of livelihood for his family.  The complainant has incurred treatment expenses including special diet, transportation, medicines etc, of Rs.3,00,000/- till now.  The complainant raised the above amount from local money lenders at a high rate of interest.  The complainant’s family is now in a stage of huge financial crisis.

5. The negligent acts of the opposite parties caused the above plight for the complainant.  The pain suffered by the complainant is cannot be estimated in terms of money.  Even then the complainant is limiting the claim of compensation to Rs.10,00,000/-

6. The 3^rd and 4^th opposite parties are employees working under the 1^st and 2^nd opposite parties.  They have committed the above negligent act while they were under the course of their employment so the 1^st and 2^nd opposite parties is vicariously liable for then negligent acts of the 3^rd and 4^th opposite parties.

7. The complainant had sent a legal notice dated 19/02/2024 to the opposite parties and it was received on 20/02/2024 and the opposite party has not yet responded.  Various attempts were made by the complainant through phone calls and in person, to settle this dispute but the opposite party completely evaded the efforts and claim of the complainant.  By the aforesaid mischievous act of the opposite party the complainant is severally perturbed, experiencing mental agony, serious back pain and not able to concentrate his routine works, and the same this causing irreparable damages to the complainant.  Hence filed this complaint and sought following relief:-

8. To direct the opposite parties to settle the claim of the complainant and pass an award allowing the complainant to realize Rs.10,00,000/- and costs.

9.  The point that arises for consideration is as follows:-

      1. Whether opposite parties committed deficiency in service?

       2. Reliefs and costs?

10. The complainant filed a proof affidavit, and Ext.A1 to A6 and A7 series were marked. The opposite party remained absent and proceeded against exparte. We have heard the counsel for the complainant.

11.  Point. No. 1

    On perusal of the evidence on records, it is evident that the complainant was treated by the 3rd opposite party as an outpatient at the 1st opposite party hospital on 22.12.2023 and to prove the same he had produced O.P ticket dt.22.12.2023 and the prescription of the medicine by the 3rd opposite party dt.22.12.2023 those documents were marked as Ext.A1, A2 respectively. It is pleaded in the complaint that the complainant consulted the 3rd opposite party with high fever on 22.12.2023 who prescribed medicines such as antibiotics and injections, namely Avil & LnjDeri/Dexona.  The complainant alleged that the 4th opposite party, the nurse injected said medicine into the left side of his hip without due care, caution and attention.  Immediately after the injection, the complainant approached the 3rd opposite party with complaints of pain, who replied that it would be over within a short time. The next day, 1.1.2024, due to pain and swelling in the injected area, the complainant went to the 1st opposite party hospital and the 3rd opposite party prescribed additional medicine but did not see a filed prescription of medicines. The learned counsel for the complainant pointed out that Ext. A3 dt.1.1.2024, is the Google pay bill for said medicines. As per the said document, the payment was from the account of the complainant to the 1st opposite party, which is clear evidence that the complainant approached opposite parties 1 to 3.  Further Ext. A4, Discharge/Reference Card and Ext.A5 case sheet are the shreds of evidence that strengthen the case of the complainant. As per those documents, it was revealed that the complainant was an inpatient in Taluk Hospital, Kayamkulam, from 3.1.2024 to 15.1.2024. There he underwent Gluteal abscess surgery. His Informed consent for anaesthesia, Informed consent for surgery, Progress notes and doctor orders, Nurse records, etc, are the evidence of his hospitalization and the nature of treatment he received from said hospital.  Further Ext.A6 are the OP tickets from Govt Fisheries Hospital, Valiazheekal, it seems that immediately after the discharge from Taluk Hospital, the complainant went to the said hospital and was treated there as a patient till 29.2.2024 and dressed  the wounded area and given medicines.  Further, as per Ext.A7 series, issued a lawyer's Notice to the 1st opposite party but did not send any reply to said notice.

12. The complainant successfully proved his case with cogent evidence.  At the same time, even sufficient opportunities were given to the opposite partiess to appear and contest their part, but they abstained from the proceedings and hence proceeded with exparte. The learned counsel for the complainant argued that the complainant is the sole breadwinner of his family and he is a daily waged worker.  Due to the negligence of the opposite parties, he could not do his daily wage work, thereby he and his family suffered.  As per the medical records, from 2.1.2024, he was admitted to Taluk Hospital and underwent surgery, as per their advice, he dressed his wound at another hospital up to 29.2.2024. It is to be noted that the allegations against the 4th opposite party are that due to lack of experience and expertise, she carelessly administered medicine by injection in an improper manner, which was the reason for severe pain and swelling to the complainant. Even though the complainant approached the 3rd opposite party immediately after the incident with the said complaint he did not give proper attention or importance to the said complaint. He didn’t even cared to look in to the reason for the complaint or even cared to examine whether there is any lapse on the part of the nurse while performing her duty or to look in to whether the medicine was administered properly and did not took any initiative to diagnose the cause of pain and swelling in the injected area. The said allegations remained unchallenged. It is pertinent to note that the next day of the alleged injection, the complainant approached the 3rd opposite party. It seems that he did not give proper attention and never attempted to diagnose the actual cause of pain and suffering.  Hence it is proved that the injury suffered by the patient is the direct result of the negligent act of the opposite parties 3&4. It is noted that both opposite parties are working under 1st and 2nd opposite parties. Therefore, they are vicariously liable to compensate for the act of omission committed by the other opposite parties. All the opposite parties are jointly and severally liable for the deficiency in service rendered by 3^rd and 4^th opposite party they cannot abstain from the liability. Furthermore, we are convinced that during these period, he suffered physical as well as mental pain, which is attributed to deficiency in service. However, the complainant did not prove his financial loss.  But we could not discard the mental agony and sufferings of the complainant. The fact that he is the sole bread winner of the family as well as he is a daily waged worker are very important aspects to be taken in to consideration  Hence, we have no hesitation in holding that the complainant needs to be compensated for his sufferings caused by the opposite parties.  Therefore, all the opposite parties are liable to pay compensation to the complainant due to deficiency in service.

13. Point No.2

 In the result the complaint is allowed in part as follows:-

All the opposite parties are jointly and severally liable to pay Rs.5,00,000/-(Five Lakhs only) as compensation for deficiency in service to the complainant, failing which said amount shall carry interest @ 9%p.a from the date of communication of this order till realization.

The order shall be complied with within one month from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission this the 30^th day of September, 2024.

                                                             Sd/-Smt. C.K.Lekhamma.(Member)

                                                           Sd/-Smt.P.R Sholy (President-In-Charge)

 Appendix:-Evidence of the complainant:-

Ext.A1                       -           OP Ticket Deva Hospital (Original)

Ext.A2                       -           Prescription Deva Hospital

Ext.A3                       -           Payment Receipt

Ext.A4                       -           Discharge / Reference Card (Original)

Ext.A5                       -           Case Sheet

Ext.A6                       -           OP Ticket from Govt. Fisheries Hospital

Ext.A7                       -           Postal receipts, AD Card & Adv.Notice

Evidence of the opposite parties:- 

Nil

// True Copy //

To        

            Complainant/Oppo. party/S.F.

                                                                                                                            By Order

                                                                                                                         Assistant Registrar

Typed by:- Br/-

Compared by:-