PER S.K. NAIK, MEMBER

            This appeal under Section 19 of the Consumer Protection Act, 1986 has been filed by Shri S.R.Bhutani, complainant in complaint case No.C-16/2005 before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ‘State Commission’).  The appeal is directed against the order dated 17.9.2007 vide which the State Commission holding the opposite parties jointly and severally responsible for medical negligence has awarded a lump sum compensation of Rs.50,000/- inclusive of cost of litigation.  Dissatisfied with the quantum of compensation - this appeal has been filed for its enhancement.

          The backdrop under which a lump sum compensation of Rs.50,000/- has been awarded against a claim of Rs.25.85 lacs can be summarized in the following paras.  

Appellant/complainant Shri S.R.Bhutani consulted respondent/ opposite party No.1, Dr.J.Maheshwari in May 2003 with complaints of pains in his shoulders.  He was then 70 years old.  After getting few tests including MRI etc. done, respondent/opposite party No.1 advised operation for replacement of the left shoulder to the complainant.  He was operated on 12.10.2003. When there was no improvement thereafter, the complainant repeatedly approached respondent/opposite party No.1 and also consulted other orthopaedic experts.  He was given the impression that there was no possibility of any improvement as a result of which he went into mental depression for which also he had to be treated.  Alleging medical negligence in performing the operation of shoulder replacement, the complaint was filed before the State Commission seeking a compensation of Rs.25.85 lacs on various  counts enumerated in para 22 of his complaint (page 38 of the paper book).  The State Commission on a careful consideration of the defence advanced by opposite parties, thorough analysis of the various authoritative pronouncements on medical negligence held the opposite parties guilty of medical negligence but awarded a lump sum compensation of Rs.50,000/-.  As stated earlier, the complainant feels that this quantum of compensation is grossly inadequate and, therefore, has filed this appeal praying for its enhancement. 

Learned counsel for the appellant/complainant has made two main submissions : Her first contention is that the respondents/ opposite parties have not challenged the order of the State Commission which has categorically held them negligent.  That would mean that the respondents admit the act of negligence.  Thereafter, she goes on to contend that once the State Commission has held the respondents/opposite parties guilty of medical negligence, it ought to have decided the quantum of compensation on the basis of claims preferred by the appellant/complainant.  As against a claim of Rs.25.85 lacs, a meager lump sum compensation of Rs.50,000/- and that too without any basis, is to say the least, not only grossly inadequate but totally unjustified.  She has vehemently argued that while the complainant was promised complete relief from pain and discomfort after the operation, he has been, quite to the contrary, suffering more than before the operation and his left arm has been declared permanently disable by L.N.J.P. Hospital.  Contending that the appellant/complainant was leading a very active life before the operation and had been working at a Dharamshala with a monthly salary and other perks, he has now been rendered  jobless due to the disability.  He has undergone a traumatic experience resulting in mental depression and he has even now been advised for another operation which will entail an expenditure  of more than 2.5 lacs.  She has repeatedly and strenuously argued that the State Commission has failed to appreciate the actual loss suffered by the complainant besides there being no other source of income.  The disability incurred as a result of medical negligence on part of the opposite parties has made him and his family dependent on others and, therefore, there is full justification for enhancement of the compensation to another 23.35 lacs.

          Counsel for the respondents/opposite parties, on the other hand, has submitted that just because opposite parties have not challenged the order of the State Commission in appeal, perse does not necessarily  amount to admission of any medical negligence.  Contending that when the matter was argued before the State Commission, respondent/opposite party No.1, Dr.J.Maheshwari was personally present and explained the procedure and processes involved in an operation of a complicated nature like shoulder replacement.  The impression then gathered was that the State Commission was convinced of the skill, sincerity and due care in operating and treating the complainant.  However, only on humanitarian and compassionate ground, an award of Rs.50,000/- only  was made after judicious consideration of the matter.  It was more or less like a case of compromise and the payment was to be ex-gratia in nature.  However, when the order passed by the State Commission was received, the opposite party was surprised to find that the State Commission has held the respondents/opposite parties negligent.  It is admitted that for the failure on part of his counsel to advise him in time to challenge the said order, he has not been able to file an appeal challenging the order before this Commission. However, the counsel  pointed out that while the State Commission’s order, all through deals with how a case of medical negligence is to be dealt with and cites a number of judicial pronouncements it also summarizes them in para 16 of its order driving the point that it would not amount to medical negligence if the treating doctor had even the ordinary skill and had done something which in the given facts and circumstances any medical professional would do.  Here the super speciality skill, competence and experience of the doctor is fully established.  The Commission, however, does not refer to the medical records of treatment to find out as to whether appellant/complainant had failed to do anything which in the peculiar facts of this complicated case any other medical professional would not have done but abruptly opines : “on the face of it the argument appears to be attractive but we find it difficult to accept it as it is a case of negligence in as much as that the operation was conducted in haste and negligent manner for any reason whatsoever.…”  The counsel submits that this observation of the State Commission that the operation was conducted in haste is far from the truth as the State Commission itself has observed that while the respondent/ complainant approached appellant/opposite party No.1 in May 2003, the operation was conducted on 12.10.2003, after a lapse of more than five months and  that  too  after examination  of all  the reports, x-ray and MRI etc.

          The counsel further contends that the State Commission was fully conscious of the peculiar facts and circumstances of the case and had applied its judicious mind and awarded a lump sum compensation of Rs.50,000/- inclusive of cost of litigation in which it has been clearly stated that this would meet the ends of justice.  According to the learned counsel, this was only because the State Commission must have  considered that it was not such a case where the gravity of the negligence warrants any stiffer compensation.  He has therefore submitted that the appeal, being devoid of any merit deserves to be dismissed. 

          We have heard the learned counsel for the parties as also have carefully gone through the order of the State Commission and have perused the records of the case.  

Undoubtedly, it is a case of a 70 years old patient with previous history of broken arms having pains in both shoulders for quite some years who was operated for replacement of his left shoulder in Oct., 2003.  The credential of respondent/opposite party No.1, Dr.J.Maheshwari admittedly is that of a fully qualified and experienced super-specialist in the field of knee and shoulder surgery.  He had held the position of Additional Professor in Orthopaedic at All India Institute of Medical Sciences, New Delhi for 13 years.  In his defence, he has denied that he ever gave any assurance that appellant/complainant will be fully relieved of any pain/problem after the shoulder replacement surgery.  Besides, the expert opinion of Dr.Farooq produced by the appellant/complainant himself clearly stated that  “the treatment given to him was correct and the surgery was carried out in a proper manner.  The fact that Mr.Bhutani did not get as much benefit as was expected was due to the fact that the shoulder was not functional for a long time before surgery and had severe muscle wasting  and soft tissue contractions.”  Besides, the expert opined that “unfortunately, the case of Mr.Bhutani fell in the category of unsatisfactory result but it was not due to any negligence on the part of the treating surgeon.”

          It appears to us that the State Commission was fully conscious of this background and had gone on to exhaustibly refer to the various judicial pronouncements with regard to medical negligence and has summarized them in para 16 of its order which states :

“To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries ?  Decision will depend upon the answers :-

(i)                Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?

(ii)              Whether the guilty doctor had done something or failed to do something which in the given facts circumstances no medical professional would do when in ordinary senses and prudence ?

(iii)            Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures ?

(iv)           Whether there was error of judgment in adopting a particular line of treatment ? If so what was the level of error ? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate ?

(v)             Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?

(vi)           Everything being in place, what was the main cause of injury or death.  Whether the cause was the direct result of the deficiency in the treatment and medication ?

(vii)          Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency ?”

While the State Commission rightly summarized the various judicial pronouncements on medical negligence, to our mind the natural corollary should have been to co-relate the case in hand with regard whether the respondent/opposite party No.1, Dr.J.Maheshwari fell into one or the other category.  However, we notice that the State Commission has not stated as to whether respondent/opposite party No.1 was negligent in any such manner but despite the expert opinion that it was not a case of negligence ; jumped to the conclusion that he was liable for conducting the operation in haste.  The records, however, indicate that there was no haste in the conduct of the operation.  To our mind, the State Commission has fully weighed the nature of the ailment and the natural post operative consequences and appears to have arrived at the right conclusion that the matter was not so grave as to warrant any heavier compensation than Rs.50,000/-.  That it has consciously awarded this lump sum compensation is evident from its order which states that “a lump sum compensation of Rs.50,000/- inclusive of cost of litigation as to the disability suffered by the complainant and pain and trauma undergone by him would meet the ends of justice.”  Thus, the State Commission has factored all the claims made by the complainant in its order.  Under the circumstances, we do not find any merit in the appeal and order its dismissal leaving the parties to bear their own costs.