Sri. P. Satheesh Chandran Nair (President):

The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows.  The complainant is a retired Professor in Zoology from M.E.S College - Kodungalloor and at present she is working as the Principal of Sree Sabari Central School and junior college at Nooranad, Alappuzha District.  The 1^st opposite party herein is an onco surgeon and the 2^nd opposite party is the hospital were the 1^st opposite party is working.  The complainant approached the 1^st opposite party with a complaint of anechoic cystic lesion measuring 1.1x1.7x1.2cm involving at 3 o’ clock position and another one measuring 1.4x1.2x1.3cm involving at 7 o’clock position on the right breast, which was diagnosed in a Mammogram test conducted at KIMS Hospital, Thiruvananthapuram on 20/12/2014.  The complainant approached the 2^nd opposite party as an experienced onco surgeon of her locality and the said surgeon verified the mammogram test result of the complainant. He advised the complainant to take USG at 2^nd opposite party’s hospital as such the complainant has undergone a USG test for both breast on 03/02/2015.  The USG was also shown 1.5 x 0.9cm hypo echoic solid lesion with central classification in right breast, quarreler region 7-8 o’clock position and another small hypo echoic lesion 0.8x0.5cm seen in 2-3 o’clock position.  It is contended that the result of the USG at 2^nd opposite party’s hospital with the result of KIMS Hospital, Thiruvananthapuram are more or less the same.  It is stated that the 1^st opposite party suggested the complainant to remove the 7 o’clock position lesion and advised her that the lesion at 3 o’clock position is harmless and need not be removed.  But the complainant requested, the 1^st opposite party to remove both the lesion considering the family history of the cancer growth in her family.  On 03/04/2015 the complainant was admitted at the 2^nd opposite party's hospital and on 04/04/2015 the right breast lump (lesion) excision done and she was discharged on 05/04/2015.  It is informed that the lump at 7 o’ clock position only was removed and it is adviced to the complainant to visit for a review after 3 months.  On 31/07/2015 the complainant had undergone for an angioplasty at St. Gregarious Cardio – Vascular Center, Parumala and discharged on 02/08/2015. The complainant consulted the 1^st opposite party on 19/09/2015 and the 1^st opposite party suggested for a USG test on that day.  It is understood that the lump in 7 o’clock position is still in the breast and it is not removed.  It is contended that the 1^st opposite party after examining the last USG report it is admitted that the 1^st opposite party removed some soft tissues by mistake instead of removing the 7 o’clock cystic lesion. Though the complainant approached 1^st and 2^nd opposite party to redress the grievances of the complainant the opposite parties are reluctant to redress the grievances.  The complainant has issued a Lawyer’s notice on 09/12/2015 to the opposite parties by calling upon them to compensate the above said negligent act.  Though the opposite parties received the notice, the opposite parties sent a reply notice disputing the negligence alleged by the complainant.  It is further contended that the act of the 1^st opposite party is a clear deficiency in service against the complainant and the opposite parties are liable to the complainant.  The complainant decided to remove the lump mainly for the purpose of histopathology test in order to rule out any cancerous growth on her.  At present the complainant’s health position is not appreciable to undergo another surgery for removing the lump.  Hence this complaint for realizing the medical treatment Rs. 50,000/-, compensation, cost etc. etc.
3. This Forum entertained the complaint and issued notice to the opposite parties for their appearance.  The opposite parties entered appearance  and filed their version separately.  The version of 1^st opposite party is briefly stated as follows.  According to 1^st opposite party the case is not maintainable either in law or on fact.  It is admitted that the complainant consulted 1^st opposite party on 23/01/2015 at 2^nd opposite party’s hospital with a mammogram report. The mammogram report was suggestive of presence of benign fibro adenomas of right breast with a size of 2cm and 1cm.  On examination both breast appeared normal in size and no abnormality was detected on clinical side.  It is contended that for mammography test breasts are placed between plates, compressed, and X-ray views are taken in 2 planes and thereby a positional alteration in the breast lesion in mammogram study, especially in fibro adenomas which are mobile in nature moreover breasts being a mobile organ, the contour changes in sitting, standing, lying down posture or stooping forward position affect the USG examination.  The mammogram report as well as USG report showed fibro adenoma in complainant’s breast.  It is contended that being a cardiac patient 1^st opposite party advised a pre surgical evaluation in consultation with physician, cardiologist and anesthesiologist with regard to complainant pre-operative fitness.  It is contended that after the completion of pre-surgical evaluation as stated above the complaint was informed that localization of lump should be done under ultra sound guidance and one of the lump having largest sizes in appearance localized in lesser depth alone should be excised for biopsy.  The complainant and her relatives voluntarily agreed and signed the consent for the surgery.  It is further contended that on 04/04/2015 with all reasonable care and caution the 1^st opposite party had conducted Lumpectomy and the lesion having largest size was localized under ultra sound guidance and the part painted with appropriate skin making and excision of lump was done and the same sent for biopsy to Lakeshore Hospital.  The complainant was discharged on 05/04/2015 and the final pathology report dated: 11/04/2015 shows fibro adenoma breast which corroborating the clinical as well as radiological diagnosis. 
4. It is contended that the complaint is filed on a mistaken inference on the basis of USG report dated:03/02/2015 and 19/09/2015 alleging that the 1^st opposite party had removed some soft tissues instead of lump highlighting finding in the USG report.  The biopsy report of Lakeshore Hospital is                       self-explanatory of the fact that the specimen examined was breast lump, which on gross examination showed nodular soft tissue size 3x2x1cm and on microscopic examination showed breast nodule with hyperplasia of glands and stroma diagnosed as fibro adenoma breast.  It is further contended that the ultra sound scanning and ultra sound images have differences depending on the experience and expertise of the radiologist interpreting the images.  Hence this result cannot be accepted as 100% reliable.  According to this 1^st opposite party       he was suggested a plan for observation but the complainant insisted for excision biopsy and hence lumpectomy was done due to her insistence. It is further stated that Lumpectomy procedure was done after identifying and localizing the lesion under ultra sound guidance and the complainant was informed that only one lesion having larger size appear in lesser depth alone would remove and the complainant was agreed for it.  The histopathology report says that whitish nodular soft tissue with surroundings fat and nodule measuring 2cm was received for histopathology.  It is contended that there is no mistake or negligent happened on 1^st opposite party as alleged by the complainant as such this opposite party is not liable to the complainant.   It is further stated that there is no admission on the reply notice of 1^st opposite party to the complainant.  It is contended that to identify a 1-2 cm sized lesion in an oversized breast is not a simple task since fibro adenomas slips the palpating hand.  The 1^st opposite party had performed the lumpectomy with due care and precision and successfully excised the lump.  According to this opposite party the complainant being finally ill motivated has cooked up a case highlighting the professional opinion of the radiologist dated:19/09/2015 and misrepresenting the histopathology report.  The relief sought by the complainant is so exorbitant and the complainant is not eligible to get any of the relief.  It is contended that the 1^st opposite party is having qualification of MS, FACS, FICS and having 26 years of experience as a reputed Consultant Surgical Oncologist.  Therefore, the opposite party prayed to dismiss the complaint with cost. 
5. The 2^nd opposite party’s version is as follows.  According to him the complaint is not maintainable either in law or on fact.  It is contended that the patient was examined and treated by 1^st opposite party as per standard medical protocol, with due care and attention.  It is stated that on examination of the complainant by 1^st opposite party both breast appeared normal in size and no abnormalities were detected.  In order to know the positional status of the lesion from the skin surface and from the nipple areola she was asked for USG of breasts.  The USG reports are co-related with the mammogram findings of fibro adenomas.  It is further contended that as insisted by the complainant excision of lesion of larger in size was done by 1^st opposite party and sent it for histopathology.  The histopathology report shows that whitish nodular soft tissues in surrounding fat and breast nodule measuring 2 cm was received for histopathology.  It is contended that the 1^st opposite party had performed the lumpectomy with due care and precision and he successfully excised the lump and ruled out any cancerous growth in complainant’s breast.  The amount shown spent towards hospital bill, laboratory charges and other expenses are so exorbitant and no basis for it.  According to him the complaint is only to extract money from the opposite party without any sufficient cause and also pleaded that the 2^nd opposite party’s hospital is a well-equipped hospital and the doctors are also well qualified and so dedicated to their profession.  Therefore, this opposite party prayed to dismiss the complaint with cost.
6. On the basis of the complaint version and records before us and we framed the following issues for consideration. 
   1. Whether the complaint is maintainable before this Forum?
   2. Whether the opposite parties committed any deficiency in service against the complainant?
   3. Regarding the relief and costs?

7. In order to prove the case of the complainant, the complainant she who filed a proof affidavit in place of chief examination before this Forum and examined her as PW1.  Through the PW1 Ext. A1 to A10 are marked.  Ext.A1 is the Mammogram Test Report dated: 19/12/2014 of the KIMS Hospital, Thiruvananthapuram.  Ext. A2 is the USG report taken from 2^nd opposite party’s Hospital on 03/02/2015.  Ext. A3 is the Histopathology report dated: 11/04/2015 of Lakeshore Hospital, Ernakulam.  Ext. A4 is the USG report dated: 19/09/2015 from 2^nd opposite party’s hospital.  Ext. A5 is the legal notice dated: 07/12/2015 issued to the opposite parties. Ext. A6 series are the postal receipts.  Ext. A7 series are AD cards.  Ext. A8 is the duplicate medical bills issued by 2^nd opposite party.  Ext. A9 is the Mammogram report dated: 24/09/2015 of Travancore MRI Scans and Laboratory, Pathanamthitta.  Ext. A10 is the USG report dated: 09/04/2016 issued from Pushpagiri Medical College, Thiruvalla.  On the other side 1^st opposite party he who filed a proof affidavit in lieu of chief examination and examined him as DW1.  Through DW1 Ext. B1 & B2 are also marked.  Ext.B1 is the out patient records and Ext. B2 is the inpatient records of the complainant.  After the closure of evidence we heard both sides. Apart from the submission of the learned counsel appearing for the both sides they filed argument note in their favour. 
8. Point No.1:- All the contesting opposite party in this case has taken a contention to the effect that this case is not maintainable either in law or on fact. When we appreciate the evidence adduced by both sides, it is revealed that the complainant approached 1^st opposite party who is employed as a doctor in Op’s hospital who attended the complainant and done surgery for the removal of anechoic cystic lesion from her breast.  The 1^st and 2^nd opposite parties are also admitted that the complainant was an inpatient in their hospital and 1^st opposite party conducted surgery on the complainant.  It is also admitted that the complainant paid an amount of Rs. 50,000/-to 2^nd opposite party’s hospital for the above said surgery.  Therefore, we can easily come to a conclusion that the complainant is a consumer and the 1^st and 2^nd opposite parties are service providers of the complainant.  Therefore, we find Point No.1 in favour of the complainant.

9. Point No. 2 & 3:- For the sake of convenience we would like to consider Point No.2 and 3 together.  When we appreciate the evidence adduced by the complainant in this case as PW1, It is to see that Ext. A1 to A10 documents were marked in their favour.  The complainant as PW1 deposed that she had undergone a Mammogram Test in KIMS Hospital, Thiruvananthapuram on 20/12/2014 and the test report shows that two Anechoic Cystic Lesion measuring 1.1x1.7x1.2cm involving at 3 o’ clock position and another one measuring 104x102x103 involving at 7 o’clock position was present.  This fact can be proved by Ext. A1 Mammogram test report of KIMS Hospital, Thiruvananthapuram.  When the complainant approached the 1^st opposite party for further consultation the 1^st opposite party directed for a USG as taken on 03/02/2015 a USG report was taken from 2^nd opposite party’s hospital.  The contents of the USG report dated: 03/02/2015 is proved by Ext. A2.  It is argued that when the complainant was approached the 1^st opposite party along with the Ext. A1 & A2 report she revealed the family history of cancer growth to 1^st opposite party, therefore she suggested removing the lesion at 7 o’ clock position and it is also informed that the lesion seen at 3 o’ clock position is harmless and need not be removed.  
10. It is admitted that the complainant right breast lump excision done on 04/04/2015 and the complainant PW1 is discharged on 05/04/2015.     It is also evident to see that after the removal of the lesion the sample of the said lesion sent to Lakeshore Hospital and Research Centre at Kochi and obtained a histopathology report.  The said report is marked as Ext. A3 in this case.    It is also brought to our notice that on 31/07/2015 the complainant had undergone for an angioplasty surgery and she was discharged on 02/08/2015 from St. Gregarious Cardio – Vascular Centre, Perumala.  The learned counsel appearing for the complainant argued that due to the angioplasty surgery stated above the complainant was not able to approach the 1^st opposite party as directed and she approached 1^st opposite party only on 19/09/2015.  On the same day a USG report was also taken from 2^nd opposite party’s hospital which is marked as Ext.A4. When we refer the USG report (Ext. A4) of 1^st opposite party’s hospital dated: 19/09/2015, the 7 o’clock position lump is still in the breast of the complainant and also shows that some soft tissues are removed from the breast instead of removing the lump in the 7 o’clock position.  When considering this fact we have to look into the evidence adduced by 1^st & 2^nd opposite party with regard to this aspect.  When we evaluate Ext. A1 mammogram test report and Ext. A2 USG report, it is clear that the 7 o’clock position cystic lesion is having a measurement of 1.4x1.2x1.3.  It is also come out in evidence to show that the cystic lesion seen in 3 o’clock position is having only 1.1x1.7x1.2cm.  It is also come out in evidence to see that 1^st opposite party has removed the cystic lesion seen on 3 o’ clock position.  The learned counsel appeared for the complainant argued that the removal of the cystic lesion of 3 o’clock position of complainant’s breast is a clear deficiency in service on the part of opposite party 1 and 2.  The learned counsel appearing for the 1^st opposite party also filed an argument note apart from his submission before the Forum.  The specific case of the 2^nd opposite party is that the breast being a mobile organ the contour changes in sitting, standing, lying down posture or stooping forward positions affect the test reports.  The USG is the only method to find out the depth of lesion.  According to 1^st opposite party as per the Ext. A1 and A2 Fibro adenoma was present on PW1’s breast and the same was not so harmful but the complainant wanted the removal of the fibro adenoma on the basis of her family history connected to cancer growth.  When we refer the proof affidavit of the complainant she deposed “ടി യു.എസ്.ജി റിപ്പോർട്ട് കണ്ടതിനുശേഷം ഒന്നാം എതൃകക്ഷി എന്നോട് വലത്തെ സ്തനത്തിൽ  7 o’ clock പെൻസിലിലും 3 o’ clock പൊസിഷനിലും രണ്ട് മുഴകൾ ആയതിൽ 7 o’ clock   പൊസിഷനിലുള്ള മുഴ നീക്കം ചെയ്യണമെന്നും 3 o’ clock പൊസിഷനിലുള്ള മുഴ പ്രശ്നമില്ലാത്തതാണെന്നും നിർദേശിച്ചു.  എന്നാൽ എൻറെ കുടുംബം കാൻസർ പാരമ്പര്യം ഉള്ളതായതുകൊണ്ട് കഴിയുമെങ്കിൽ രണ്ടു മുഴകളും നീക്കം ചെയ്യണമെന്ന് ഞാൻ ഒന്നാം കക്ഷിയോട് അഭർത്തിക്കുകയുണ്ടായി.  She again adds in chief affidavit ഓപ്പറേഷൻ ചെയ്ത ശേഷം ഒന്നാം എതൃകക്ഷി വലതുസ്തനത്തിലെ 7 o’ clock പൊസിഷനിലുള്ള മുഴ മാത്രമേ നീക്കം ചെയ്തിട്ടുള്ളൂ എന്ന് എന്നെ അറിയിക്കുകയും ചെയ്തു. When we examine the cross-examination of the 1^st opposite party the above portion of the testimony has not been challenged by 2^nd opposite party.  It is true that the learned counsel of 1^st opposite party asked so many questions with regard to the difference of Ext. A1 & A2 and also asked so many questions with regard to Fibro adenoma.  When considering the nature and circumstances of the case the main question to be considered is whether the 1^st opposite party removed the lesion seen on 7 o’ clock position or not.  On the basis of the complaint and proof affidavit before us it is to see that 2^nd opposite party informed the complainant that the surgery would be conducted for the removal of lesion seen in 7 o’ clock position.  The 2^nd opposite party has a definite case to the effect that he never told the complainant that the lesion in 7 o’ clock position was removed rather informed that lesion in lesser depth localized in ultrasound would be removed. When we evaluate the evidence before us, there is nothing to show that the above said contention of the 2^nd opposite party is sustainable. 
11. The learned counsel appearing for the 1^st opposite party argued that the complainant framed her case based on hypo echoic solid lesions in 7-8 o’clock position and another hypo echoic lesion in 2-3 o’clock position.  According to the learned counsel of opposite party in Ext. A4 the radiologist described only one lesion as solid hypo echoic and based on Ext. A9 and A10, it is described as cystic area in 2-3 o’ clock position and the complainant purposefully misguided this fact.  When we examine the above Ext. A4, A9 and A10, it is revealed that the lesion seen in 7-8 o’ clock position is a hypo echoic solid lesion on the right breast and another small hypo echoic lesion (0.8 x 0.7 cm) in the 2-3 o’ clock position.  When we evaluate this Ext. A4 the lesion seen in 7 o’clock position is bigger than the lesion seen in 3 o’ clock position. Therefore, argument put forwarded by the learned counsel with regard to Ext. A4 also find untenable.  It is further argued that Ext. A9 and A8 are also against PW1’s case and it supports the actual fact that the 1^st opposite party had removed one lesion through lumpectomy.  No doubt this Ext. A9 report was taken on 24/09/2015 i.e. after the surgery dated: 04/04/15.  Ext. A10 dated: 09/04/2016 is a USG report of the right breast of the PW1 taken from Pushpagiri Hospital, Thiruvalla. When we look into Ext. A9 and A10 the hypo echoic lesion of 7 o’ clock position is clearly mentioned.  It is true that a cystic area with irregular walls measuring 6.4mm is also noted at 2 o’ clock position of the right breast.  It can be easily inferred that the cyst formed at 2 o’ clock position at the right breast may appeared after the date of surgery.  On the basis of this appreciation we find that there is no merit in the argument put forwarded by 1^st opposite party with regard to Ext. A4, A9 & A10.  Ext. A5 is a reply notice issued by 1^st opposite party doctor in favour of the complainant’s advocate dated: 03/12/2015.  In this letter 1^st opposite party has totally denied the allegation raised by the complainant herein.  Ext. A6 & A7 are the evidence to show that the complainant’s counsel sent a legal notice to opposite parties for the redressal of the PW1’s grievances.  The postal receipt and post acknowledgment cards are marked for that purpose.  Ext. A8 dated: 05/04/2015 shows that the complainant PW1 paid an amount of Rs. 22,740/- for the said surgery at opposite party’s hospital.  The details of the said bill shown in page 2-3 of Ext. A8.  Ext. A9 is a mammogram report dated: 24/09/2015 and Ext. A10 is an USG report dated: 09/04/2016 issued from department of Radiology, Pushpagiri Hospital, Thiruvalla.  The evidence of Ext. A9 & A10 are already discussed above.  When PW1 was cross – examined she replied “Ext. A3 പ്രകാരം Lakeshore Hospital ൽ breast lump എന്നാണ് രേഖപ്പെടുത്തിയിട്ടുള്ളത്. ആയത് നീക്കം ചെയ്യാനുള്ള  surgery ആണ് 1þmw O.P നടത്തിയത്  specimen പരിശോധിച്ച ശേഷം final diagnosis ആയി fibro adenoma എന്നാണ് രേഖപ്പേടുത്തിയിട്ടുള്ളത് Ext. A1 പ്രകാരം Fibro adenoma ഉണ്ട് എന്നാണ് സംശയം രേഖപ്പെടുത്ത്യ്ട്ടുള്ളത്.  Ext. A2 പ്രകാരവും ടി സംശയം ആണ് രേഖപ്പെടുത്തിയിട്ടുള്ളത്.  Ext. A1 and A2 പ്രകാരം കണ്ട finding lesion സംബന്ധിച്ചുള്ള സ്വഭാവം Ext. A3 പ്രകാരം ഉറപ്പിക്കുകയുണ്ടായിരുന്നല്ലോ(Q). ആയിരിക്കാം (A). Not sure Harmless ആയിട്ടുള്ള ചെറിയ മുഴയാണ് Fibro Adenoma.  It may convert in to cancer”.  On the basis of the above deposition apart from the evidence of document we can easily inferred that the complainant PW1 was well aware of the treatment conducted by 1^st opposite party in 2^nd opposite party’s hospital.  When we evaluate the evidence adduced by DW1 through his proof affidavit it is clear that he deposed more or less as per the tune of his version.  When DW1 was cross – examined by the complainant’s counsel he answered to a question “USG report  right breast ൽ കണ്ട രണ്ട് മുഴകളും harmless ആയിരുന്നല്ലോ നിങ്ങളുടെ opnion.(A) അതേ. Patient \v cancer family history ഉള്ളതുകൊണ്ട് 2 മുഴകൾ വലിപ്പം കൂടിയ മുഴ നീക്കം ചെയ്യാൻ വേണ്ടി തീരുമാനം എടുത്തത് (Q). നീക്കം ചെയ്തു എന്നു പറയുന്ന അതേ മുഴയല്ലെ   lakeshore hospital ൽ അയച്ചുകൊടുത്തത്.(A) അതെ.   If we examine the testimony of DW1 it can be inferred that the complainant PW1 actually intended to remove the bigger lesion which was seen at 7 o’ clock position of her right breast.  It is also evident to see that due to the family history of the possibility of cancer PW1 wanted to removes these two lumps.  He again answered in-cross “Ext. A4 ൽ ആദ്യത്തെ മുഴ 7-8 o’clock position ൽ അല്ലെ. (A) അതെ  Ext. A2 ൽ പറഞ്ഞിരിക്കുന്ന അതേ മുഴയാണ്. (Q) Ext. A4 ൽ 7-8 o’clock position ൽ കാണുന്ന lesion അതെ document se 2-3 o’ clock position ലെ lesion നേക്കാൾ വലിപ്പം കൂടുതൽ അല്ലെ.  As per the above testimony of DW1 we can come to a clear conclusion that 1^st opposite party was well aware of two lesion of PW1 and the big one was the lesion seen at 7-8 o’ clock position.  He further answered in-cross “Ext. A4 19/09/2015 ലേതാണ് ഞാൻ   04/04/2015 ൽ ആണ് പരാതിക്കാരിയുടെ മുഴ operate sNbvXXv AtX site ൽ ആണ് another small hypo echoic lesion (0.8x0.5 cm) seen in 2-3 o’clock position peripherally എന്ന് കാണുന്നത്. ഇതേ doctor തന്നെയാണ് Ext. A2 ഉം Ext. A4 ഉംUSG ചെയ്തത്.  Ext. A2 ൽ solid lesion എന്നും size ഉം എഴുതിയിട്ടുണ്ട്. Ext. A4 ൽ solid എന്ന് എഴുതിയിട്ടില്ല. When we look into Ext. A2 a solid lesion having a size of 1.5 x 1.0 cm mentioned in 2-3 o’clock position can be seen. This USG report was taken on 03/02/2015.  The USG report dated:19/09/2015 which was taken after the surgery i.e. 04/04/2015, shows that small hypo echoic lesion measuring 0.8 x 0.5 cm can be seen at 2-3 o’ clock position peripherally.  On the basis of this Ext. A4 USG report with regard to 2-3 O’clock position lesion no doubt, we can come to a conclusion that the lesion seen on 2-3 O’clock position in Ext.A2 USG report and the lesion seen in 2-3 position in Ext. A4 report are different.  As discussed earlier this may be a growth happened after the date of the surgery.  It is true that the opposite side produced and marked Ext. B1 and B2 through DW1 to substantiate their case. When we go through the Ext. B1 it is evident to see that lumpectomy was done on 04/04/2015 and it is stated in page 5 of Ext. B1.  In page 6 of the said Ext. B1 the treatment dated; 30/03/2015 is seen described. The page 7 of Ext. B1 shows that it is an additional page incorporated with Ext. B1 file and the treatment from 05/04/2015 is described in that page.  The handwriting in page 5 and the handwriting in page 6,7,8 are seen so different.  It is pertinent to see that in page 5 of Ext.B1 dated: 04/04/2015 i.e. the date of surgery the details of the surgery cannot be seen described.  Even though we refer these pages of Ext. B1 there is no evidence to see that which lump of the PW1 was removed on the date of surgery.
12. When we go through Ext. B2 IP record page 2 a lump in breast having a size of 3 x 3cm is seen removed.  Here also the position of the lump has not been mentioned.  When we evaluate the Ext. B1 & B2 report it also arised the lack of bonafied on the part of the opposite parties. It is true that the opposite party is having a qualification of MS, FACS, FICS and having 20 years of experience as a reputed onco surgeon, if it be so a patient is expecting best consultation, treatment or surgery from that kind of a qualified person.  On the other side we can see that the complainant is a retired zoology professor of MES college, Kodugalloor and at present she is working as a principal at Sree Sabari Central School and Junior College, Nooranad.  If the 1^st opposite party removed the lesion seen on 7 o’clock position of her breast she can avoid a further surgery and allied expenses and pain.  When we are deciding the quantum of compensation, the age of the complainant, present positions in the society are also to be considered. It is seen that the complainant is having an age of 61 years at the time of filing her affidavit before this Forum.  So she can be considered as a senior citizen. It is submitted that the hospital authorities received a sum of Rs.22,240/- as per Ext. A8.  Though the complainant demanded to refund the hospital expenses of Rs. 50,000/- as per Ext.A8 Rs. 22,240/- is only seen paid to opposite party’s hospital.  The complainant in her affidavit paragraph 15 it is admitted that Ext.A8 is the evidence of the remittance of the medical bill. Therefore the medical bill is to be calculated as Rs. 22,240/-.  In the light of the above discussion we can find that the complainant is succeeded to prove her case and it is also found that 1^st  opposite party has committed deficiency in service when he discharge his service to the complainant as a doctor.  It is come out in evidence to see that 1^st opposite party is working in 2^nd opposite party’s hospital.  There is no dispute arised by any party with regard to the employer and employee relationship between 1^st and 2^nd opposite party.  If a servant does a wrongful act in the course of his employment the employer or the master is also liable along with the employee.  The 1^st and 2^nd opposite parties are jointly and severely liable to the complainant.   Point No. 2 and 3 are also found in favour of the complainant.
13. In the result we pass the following orders.

1. 1^st and 2^nd opposite parties are here by directed to refund the hospital expenditure of the complainant Rs. 22,240/- (Rupees Twenty Two Thousand Two Hundred and Forty only) to the complainant with 10% interest from the date of this petition onwards.

2. The 1^st and 2^nd opposite parties are also directed to pay a compensation of Rs. 1,00,000/- (Rupees One lakhs) and a cost of Rs. 5,000/- (Rupees Five Thousand only) to the complainant with 10% interest from the date of receipt of this order onwards.

       Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31st day of July, 2017.

                                                                                    (Sd/-)

                                                          P. Satheesh Chandran Nair,                                                                                                                                                                                                                                             

                                                                 (President)

Smt. Sheela Jacob (Member)               :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1 :  G. Jayakumari

Exhibits marked on the side of the complainant:

A1 : Mammogram Test Report dated: 19/12/2014 of the KIMS Hospital,     

       Thiruvananthapuram.

A2 : USG report taken from 2^nd opposite party’s Hospital on 03/02/2015

A3 : Histopathology report dated: 11/04/2015 of Lakeshore Hospital, Ernakulam.

A4 : USG report dated: 19/09/2015 from 2^nd opposite party’s hospital.

A5 : legal notice dated: 07/12/2015 issued to the opposite parties.

A6 series :  The postal receipts.

A7 series :  The AD cards.

A8 : duplicate medical bills issued by 2^nd opposite party.

A9 : Mammogram test report dated: 24/09/2015 of Travancore MRI Scans and        

        Laboratory, Pathanamthitta.

A10 : The USG report dated: 09/04/2016 issued from Pushpagiri Medical              

         College, Thiruvalla.

Witness examined on the side of the opposite parties:

DW1: K. Thomas Varghese

Exhibits marked on the side of the opposite parties:  

B1 : Out patient records.

B2 : Inpatient records.            

                                                                                (By Order)

Copy to : (1)  Jayakumari.G,

                     Sree sai, Vadakkedathukavu,

                      Erathu Village, Adoor Taluk, Pathanamthitta.

               (2)  Dr. Thomas Varghese,

       Onco Surgeon, Christian Mission Hospital,

       Pandalam, Pathanamthitta.

(3)  Christian Mission Hospital,

      Pandalam, Rep. By. Dr. T.G. Varghese,

      Managing Director, Christian Mission Hospital,

      Pandalam, Pathanamthitta. 

(4)  The Stock File.