Complainant Shri Deb Kumar Sarkar by filing a Petition under Section 12 of the Consumer Protection Act, 1986 on 21.12.2005 has prayed for Rs. 10,00,000.00 as medical expenditure and harassment caused to him due to negligence in duty and deficiency in service on the part of the O.P., viz., Dr. Kali Kinkar Chattopadhyay. It is the specific grievance of the Complainant that he is suffering due to wrong treatment done by the Dr. Kali Kinkar Chattopadhyay. The Petitioner met with an accident on 24.12.2003 and he was taken to health centre at Durgapur Steel Centre Hospital where he was given first aid and he was carried to Durgapur Steel Plant Main Hospital where his X-Ray was taken and it was found from the X-Ray Report that his left femur bone was fractured. Thereafter on 25.12.2003 the Complainant came to the O.P. who operated the Petitioner by way of surgery and fixed a nail on 26.12.2003 and on 29.12.2003 the Petitioner was allowed to walk putting pressure on left leg with normal support on his wife. But subsequently left leg was swollen. Further X-Ray was taken showing that the nail was twisted  and the bone was fractured. He was second time surgically operated on 02.01.2004 by mechanically straightening the nail although he requested the doctor to change the nail with a new one, but the doctor did not given any importance to it. He was suffering from pain. Doctor advised him to take only pain killer medicines assuring that the pain will be subsided and the bone will be united automatically. But the Complainant did not find any progress. On and from 02.01.2004 to 15.02.2004 he became completely bed-ridden and suffered from severe pain. He complained of it over telephone to the doctor and doctor informed him that straightening of the twisted nail is out of medical nature

          Further on 01.05.2004 he visited the chamber of the doctor who examined him, made an X-Ray and expressed all his satisfaction and verbally advised him to take Etnabox-60 and Etnabox-90 for muscle pain but the bone remained as same and he did not find any improvement and finally on 14.07.2004 he again came to the nursing home of the O.P.-Doctor who took X-Ray and told that the bone has not been united, but no X-Ray plat was given to the Complainant and every time he complained of pain with no fruitful result.

          Ultimately on 15.07.2004 the Complainant was advised by Dr. D. P. Bakshi & Dr. P. K. Banerjee of Peerless Hospitals, Kolkata, who advised for further operation.

          Having suffered from unbearable paid the Petition ultimately took decision to go to CMCH at Vellore and there after proper check up found that there was an infected nail which was due to the wrong treatment and negligence of the O.P.-Doctor, and ultimately at CMCH, Vellore there was an operation which cured the infection by way of application of costly injection and tablets and the Petitioner was relieved from severe pain. So it is for the medical negligence and wrong treatment of Dr. Kali Kinkar Chattopadhyay the Petitioner suffered a lot, and finding no other alternative he filed this case against the O.P. with the aforesaid prayer.

          O.P. Dr. Kali Kinkar Chattopadhyay has contested this case by filing a Written Version on 29.06.2006 wherein he has challenged the maintainability of the present case which is liable to be dismissed in limini on the grounds that as the allegation of the Petitioner is of medical negligence, a medical negligence of highly technical nature this Forum has got no jurisdiction to decide this case which can be decided by Civil Court, and it cannot be decided without evidence of expert. And in this respect of alleged medical negligence this Forum has got no jurisdiction.

          He has further stated that on 25.12.2003 when the Complainant appeared at his chamber being referred by Dr. D. K. Ghosh over telephone; on examination of the Complainant he found that the upper shaft/fracture of left femur – technically compound, he had also fracture of second metacarpal left side and when the Complainant visited his chamber he had already done an X-Ray outside at Durgapur and on enquiry he came to learn such injury was caused due to road accident. On his advice the Complainant got admitted to an orthopaedic & fracture clinic on 25.12.2003. On 26^th December, 2003 he surgically intervened the Complainant to nail the fracture which was uneventful. X-Ray was done on that day which was shown to the Complainant and his relation which was satisfactory, the condition of the Complainant was satisfactory to 1^st January, 2004. However, on 01.01.2004 he noticed swelling in the operated zone when he measured the leg and noticed some femoral shortening. X-Ray was taken showing that the nail had bent at the fracture site and in his opinion the same could be taken care of straightening the nail by manipulation. His view was made known to the Complainant and his relations and for that purpose surgical intervention was necessary. And he did so. As the fracture was at upper shaft of left femur on 2^nd January, 2004 with surgical intervention the deformity in the fracture was taken care of uneventfully. X-Ray Report indicated that the deformity has been corrected. The condition of the Complainant was satisfactory and he was discharged on 06.01.2004 with necessary advice and at that time the patient had no pain on the operated leg. On 13.02.2004 some relations of the Complainant visited the O.P. Doctor with check X-Ray dated 05.02.2004 for instruction and he found it was satisfactory and gave advice for another check X-Ray at the end of March, 2004 and to consult local surgeon as the Complainant did not appear before him. Thereafter on 01.05.2004 the Complainant came to him with Complaint and discomfort in the left knee and outer aspect of the fracture site. He could lift left leg while lying down. The X-Rafy showed formation of some callus. He advised the Complainant to walk non-weight bearing on crutch and to report to him SOS otherwise after six weeks.

          On 14^th July, 2004 the Complainant went to him with persisting pain on weight bearing and clinically he diagnosed as non-union of fractured site. He was advised interlocking nail with bone graft and on the desire of the Complainant he referred to Dr. P. K. Banerjee of Peerless Hospital for consultation. And thereafter the Complainant never came to him.

          He has also denied that on 26.12.2003 and on 29.12.2003 the Complainant was allowed by him to walk putting pressure on the left leg with normal support of his wife and he has also denied that the Complainant requested him to change the nail by a new one, but he did not give any importance to the Complainant’s request. He also denied that he gave pain-killer and that the pain will be automatically subsided as and when the bone will unite. He also denied that the discharge of the Complainant on 6^th January, 2004 where the Complainant was lying on bed upto 15^th February, 2004, at another point of time the Complainant* informed him over telephone about the pain suffered by him. He also denied that he verbally advised the Complainant to take Etrobox-60 and Etrobox-90. It is specifically on the express desire  of the Complainant he was referred to Dr. P. K. Banerjee and Dr. Bakshi.

          It is stated that on 14.07.2004 the Complainant came to him and complained of persisting pain on weight bearing and he was clinically diagnosed as non-union of fractured site and as such he was advised for interlocking nail with bone graft.  Non-union of fractured bone was explained to the Complainant and so the allegation of the Complainant that it was suppressed by the Doctor here, namely the O.P., is a false allegation. He also asserts that he minutely treated the patient and no infection of fracture site was noticed even by CMCH when the Complainant had been there for treatment. In order to intentionally harass the Complainant and hamper his professional reputation the Complainant with certain false allegations has filed this case which should be dismissed with compensatory costs in favour of the O.P.

DECISION WITH REASONS

          Admittedly, the Complainant met with an accident and he was taken to a health centre at Durgapur Steel Plant Hospital and first-aid was given to him there. Thereafter he was taken to Steel Plant Main Hospital where his X-Ray was taken and from the X-Ray Report it was revealed that his left femur bone was fractured.

          Further admitted position is that for better medical treatment he came to Dr. Kali Kinkar Chattopadhyay, O.P. and Dr. K. K. Chattopadhyay in his Orthopaedic & Fracture Clinic diagonosed the Complainant by fixing a K-Nail on 26.12.2003. It is the specific grievance of the Complainant that on 29.12.2003 the Complainant was allowed by Dr. Chattopadhyay to walk putting pressure on left leg with normal support on his wife. But as a result his left leg was swelled. Further X-Ray was taken which showed the K-Nail was twisted and fractured bone for the second time on 02.01.2004 Dr. Chattopadhyay mechanically straightened the nail although the Complainant requested the doctor to change the nail with a new one, but the doctor did not give any importance to his offer/request. The Complainant suffered from severe pain and the doctor informed him that the pain will be subsided and the bone will be united automatically. Again on 13.02.2004 Dr. Chattopadhyay checked the Complainant and expressed his satisfaction that the problem was under progress. But the Complainant was suffering from severe pain and from 02.01.2004 to 15.02.2004 the Complainant was completely bed-ridden. He inforked about his pain and problem but Dr. Chattopadhyay verb ally assured him only that the problem will be solved. And Dr. Chattopadhyay against his request also refused/declined to straighten the twisted nail on the ground that it is out of medical nature. It is very much pertinent to know that when it was revealed especially from the X-Ray Report that the K-Nail was twisted, and more particularly, when the Complainant was suffering from severe pain and when the Complainant requested him to replace the twisted nail by a new one it is not understood by any common prudence that what prompted the doctor not to change the twisted nail by a new one, particularly when the patient was suffering from pain. Dr. Kali Kinkar Chattopadhyay in his Written Version dated 219.06.2006 in paragraph 4(f) has stated “The condition of the Complainant was satisfactory upto 1^st January, 2004. However, on that day swelling in the operated high being noticed when I measured the leg I noticed some formal shortening and X-Ray was conducted immediately which indicated that the nail had bend at the fracture site. In my opinion the same could be taken care of by straightening the nail by manipulation. My such view was also known to the Complainant and his relatives and for that purpose surgical intervention is necessary. With the help of this statement we can come to a very logical conclusion that the fixation of K-Nail for the first time by the doctor did not give satisfactoryh result because it is according to his own statement as noted above supported by the X-Ray Report that on measurement the left leg had shown femoral shortening and that the nail was bent at the fracture site. During cross-examination Dr. Chattopadhyay said that “Fact that on 01.01.2004 I found the patient O.K. and I found swelling.” This appears to be self-contradictory to us because if the condition of the patient was O.K. whey there was swelling? Further he has said that he found such swelling of the upper thigh and on measurement he found slight shortage of the left femur in comparison with the right side. Does it show the normal condition of the left femur of the Complainant. Further he said that as far as he can remember he received Rs. 12,000.00 for team. It appears from the receipt dated 06.01.2004 that he received Rs. 15,500.00 for his professional service for the operation of fractured left leg caused by traffic accident. It appears from is cross-examination that the price of the nail may be Rs. 150.00 or Rs. 200.00. He further goes on to say “Following X-Ray bending of the nail is confirmed and explainex to the part what subsequent step we should take now. I did not take any advice from the patient party but I explained the situation. He is also of the opinion that manipulation itself is surgical intervention.

          We have already said that he was of the original opinion that the bone will be automatically united. But during cross-examination he opined non-unification of the fracture which may be cause for many factors.

          During cross-examination he also said that the X-Ray was done at the Orthopaedic & Fracture Clinic, but he said that he is not involved with the said Clinic. But it appears from the Discharge Certificate dated 06.01.2004 that the Complainant was at the Nursing Home, viz., Orthopaedic & Fracture Clinic of 15/2, Sarat Bose Road, Kolkata-700 020 and was under the treatment of Dr. Kali Kinkar Chattopadhyay and the Complainant was admitted on 25.12.2003 at 8.10 p.m. and was discharged on 06.01.2004 at 10 a.m. Accordingly, it can be said with reasonable certainty that Dr. Chattopadhyay was involved with the Orthopaedic & Fracture Clinic where the Complainant was under the treatment of Dr. Chattopadhyay from 25.12.2003 to 05.01.2004 and he was discharged therefrom on 06.01.2004 at 10 a.m. Durisng cross-examination he also said I have a chamber at Orthopaedic & Fracture Clinic for which he pays rent. In view of this position the veracity of the evidence of Dr. Chattopadhyay is to be taken with a pinch of salt.

          On the other hand the Complainant during his cross-examination deposed on 21.06.2007 has categorically stated that Dr. Chattopadhyay examined him on 25.12.2003 in the Nursing Home during the afternoon hours, and after examination Dr. Chattopadhyay advised him for admission in the Nursing Home for surgical operation. Common prudence suggests that when a patient is admitted to a Nursing Home and when he is put under treatment of a doctor the patient himself, his well-wishers, friends  and relations are bound to follow the advice of the doctor for the sake of welfare of the patient. Whether the surgical operation is successful or the best and most competent person is the doctor himself. So, naturally during cross-examination the Complainant said that he cannot suggest anything from the X-Ray excepting the opinion of the concerned doctor if the operation was successful. But we must not lose sight of the fact that during the cross-examination Dr. Chattopadhyay has categorically stated that on 01.01.2004 he found swelling in the left leg of the Complainant and similarly in corroboration with Dr. Chattopadhyay the Complainant during cross-examination has said that from the X-Ray Report it appeared that the nail was bent in fracture site. He also said that Dr. Chattopadhyay suggested pain-killer Etrobox-60 & Etrobox-90 and Moboizox over phone through his relatives. It is not expected to have the prescription when Dr. Chattopadhyay those pain-killer medicines over telephone as said by the Complainant himself. He further said that on 15.07.2004 Dr. D. P. Bakshi examined him and issued prescription and thereafter Dr. Banerjee and Dr. Bakshi suggested him another surgery. Thereafter he went to Vellore for getting better treatment instead of better treatment from Dr. Bakshi and Dr. Banerjee. And during the period from 5^th July to 5^th August, 2004 he followed the prescription of Dr. Chattopadhyay. We have perused Discharge Summary of Christian Medical College, Vellore-4 dated 02.09.2004 (Date of Discharge) the patient was admitted there on 05.08.2004 and on examination it was found circumferential swelling, abnormal mobility, pain at mid-thigh on end-flexion : hip painful, restriction of flexion and rotation. In their recommendations we find bed-rest for 2 months. During the post-opeative period they found development of constant serous soakage of operated site with low grade fever. He underwent washout on 28.08.2004.

          It is not understood that how Dr. Chattopadhyay, who is the O.P. in this case, advised and allowed the patient after fixing of K-nail on 26.12.2003 and allowed him to walk poutting pressure on the left leg with the normal support on his wife, particularly, when the doctors of Vellore recommended for bed-rest for 2 months observing on examination “abnormal mobility present, transmitted mobility decreased”. The patient was, howver,  admitted to Vellore on 14.10.2004 and he was discharged on 21.10.2004 and for the second time at Vellore bone grafting of left femur was done on 15.10.2004 and they advised by way of their recommendations “toe touch crutch walking”.  In view of this position it is not understood that how and why Dr. Chattopadhyay after fixation of nail on 26.12.2003 simply allowed the patient to walk by putting pressure on the left leg with the normal support of his wife. It is unusual to accept sofar as our common prudence is concerned. Or in alternative if we are to accept recommendations and diagnosis of Dr. Chattopadhyay we are to discard rather come to the finding that the doctors of Vellore did not come to the right decision but it is very pertinent and most important question to be reckoned with high seriousness that the patient was recovered not by the treatment of Dr. Chattopadhyay but by the treatment given to him by the doctors of Vellore.

          We have perused the Evidence of Affidavit of the Complainant filed on 13.04.2007. We have also mentioned our observation of his cross-examination. During his Examination-in-Chief he has unhesitatingly said that as a result of swelling of the left leg after the operation for the first time X-Ray for the second time was taken which showed that the nail was fixed on his left femur was twisted and the fracture of bone. Thereafter Dr. Chattopadhyay on 02.01.2004 mechanically straightened the said nail, although he and his relations requested Dr. Chattopadhyay to change by new one but Dr. Chattopadhyay did not pay any heed to their request. Admittedly, Dr. Chattopadhyay instead of replacing the bent nail straightened the bent nail and refixed it into the left femur of the Complainant, but for such straightening the Complainant did not find any progress or mitigation  of pain; on the contrary the degree and intensity of his pain was increased. He complained of it to the doctor and ultimately he was taken to Vellore where he was cured. He also said that Dr. Chattopadhyay did not minutely treat him because the doctors of Vellore in their Medical Report expressed that it was infected nail. The proposal and requested of the Complainant and his relations to replace the bent nail by a new one is also corroborated by the doctors of Perless Hospital where the doctors advised exchange of nailing and they also found from the X-Ray Report progressive bending of K-Nail. It is not also understood that how Dr. Chattopadhyay observed on 29.12.2003 that the patient was made to bear full weightwith self-support, particularly, when during cross-examination he said that he found swelling on the upper left thigh and on measurement found slight shortening of the left femur bone compared to the right side. Comparing his statement in  the cross-examination and his recommendation on 29.12.2003 we are of the opinion that when on oath Dr. Chattopadhyay on 21.02.2008 stated during cross-examination that there was swelling on the left femur and the length of the left femur was shorter compared to the right leg his statement during cross-examination is to be accepted ignoring his recommendation and observation made on 29.12.2003. That there was swelling on the left thigh was also noticed by Dr. Chattopadhyay as evident from his Evidence submitted on 12.12.2007. And there he also stated that he noticed femoral shortening of the left femur. He could not deny about the swelling and pain because during his Examination-in-Chief he said that “Thereafter on or about 1^st May, 2004 the Complainant came to me with complaint of discomfort in the left knee and other aspect of the fracture site”. Again on 14^th July, 2004 the Complainant came to him with complaint of persisting pain on weight bearing and clinically he was diagnosed as non-union of fracture site. We have also found from the medical prescription and report that callus was formed at the fracture site of the left femur.

          It appears on perusal of the record that on 21.02.2008 O.P. Kr. Kali Kinkar Chattopadhyay filed an Application b efore this Forum with a prayer for filing an Exper Opinion and he also stated that all the prescriptions about the treatments of the Complainant and X-Ray Plates and Reports in original should be filed lying in the custody of the Complainant. It appears from Order No. 15 dated 21.02.2008 that the prayer of the O.P. Party was allowed and Ld. Lawyer of the O.P. called for some documents from the custody of the Complainant. It appears from the Evidence of Dr. Narayan Prasad Deb Roy who was selected as an Expert by the O.P. himself. It also appears from his Evidence that he is a friend of the O.P. Dr. Chattopadhyay for 10 years. In view of this position his opinion as a Expert Doctor should be taken with a grain of salt because common prudemce demands that an Expert in order to be neutral and impartial should be called for by the Court. But in the instant case this principle has not been followed, although it appears from Order No. 15 dated 21.02.2008 that our Ld. Predecessors allowed the prayer of the O.P. to examine Dr. N. P. Deb Roy, who is none but the friend of the O.P. for about 10 years. Let us now scan the Evidence of Dr. N. P. Deb Roy who was examined on 03.07.2008.He has categorically stated that “I have been requested by Dr. Kali Kinkar Chattopadhyay to express my view about the treatment given/extended to Mr. Deb Kumar Sarkar by Dr. Chattopadhyay. I have been supplied with           following documents :

1. Copy of Complaint filed in this case with its Annexures.
2. Objection of Dr. Kali Kinkar Chattopadhyay.
3. Supporting documents of the Complaint mentioned in his Affidavit on Evidence.
4. Bed Head Ticket of the Complainant as annexed to the Affidavit on Evidence of Dr. Chattopadhyay.
5. I understand that inspite of Order of this Ld. Forum the Complainant has not deposited the X-Ray Plates and as such I could not consider the same and my opinion is based on            available treatment papers.

This being the position his opinion cannot and should not b e accepted as comprehensive and complete opinion. In paragraph 6 he has said that “Dr. Chattopadhyay rightly advised for surgical intervention by way of nailing the fracture. Such surgery is well within the standard medical norms for the fracture of the Complainant. In paragraph 9 he stated ‘From the prescription of Dr. Chattopadhyay dated 1^st May, 2004 it appears that the Complainant came to Dr. Chattopadhyay with complaint of muscular discomfort and outer aspect of the left thigh and discomfort in the left knee . Dr. Chattopadhyay on examination found that the length of the legs equal.’ But we have already mentioned that Dr. Chattopadhyay in his Evidence and WV had stated that the length of the left leg after operation was found shorter in size compared to the right leg. During cross-examination (Affidavit of Dr. N. P. Deb Roy replied to the questions put to him by way of cross-examination by the Complainant). He was asked :

Q. 5  Dr. Deb Roy : Can you justify that after operation on 26.12.2003 the Complainant was allowed to walk on 29.12.,2003?

Ans.  The question is not clear to me.

Q. 6  Dr. Deb Roy : Can you justify after advice of Dr. K. K. Chattopadhyay nail twisted and fracture of bone?

Ans.  The question is not clear to me.

          We fail to understand rather common prudence simply shows that with respect to Q. 5 there is no ambiguity and why this question is not understood by Dr. Deb Roy is not also understood by us. On the contrary we have already mentioned that the doctors of Vellore in their recommendation after grafting of bone in the left femur advised the patient for 2 months’ bed rest. There is no evidence on record that this Dr. Deb Roy is higher or better qualified than the doctors of Vellore. Further a question has been put to him that Dr. Deb Roy is not higher qualified than the O.. K. K. Chattopadhyay.

In Q. 8 he was asked  : Dr. Deb Roy – Could you say when a new nail has been bent by the pressure of the Complainant’s body.

          Ans.  Please clarify which nail has been referred to in the Question and where, in which part of the body the same bented.

          Q. 9  When a nail cannot be tolerated the weight of the Complainant if the nail is reset, don’t you think that the same nail should be broken or bent if you make it straight/manipulated, what is your opinion?

          Ans. Please clarify which nail has been referred to and where?

          We can not also understand that whereas the ambiguity in the question, particularly when Dr. Deb Roy deposed on the basis of the Medical Reports, BHT and the Petition  of Complaint. It is very unfortunate to know that Dr. Deb Roy intentionally suppressed to give his clear opinion inspite of knowing the full fact of the case and diagnosis rendered by Dr. K. K. Chattopadhyay in Q. 11, he was asked –

          Q. 11          After the second operation Dr. Chattopadhyay gave opinion that the condition of the patient is satisfactory but ultimately it was detected the bone has not lbeen united. What is your opinion regarding the statement of the Doctor towards the patient/Petitioner?

          Ans.  Even after satisfactory surgery the bone may not unite for various causes. Statement of Dr. Chattopadhyay has to be accepted in absence of any opportunity to verify the check X-Ray of the patient taken in or around January, 2004.

          But we must not fail to remember that Dr. Chattopadhyay in his WV and Evidence had assured the Complainant and his relations that the bone will  be united automatically. In view of this position and assertion by Dr. Chattopadhyay himself we are unable to accept the opinion of Dr. N. P. Deb Roy.

          Further we have already categorically and elaborately discussed about the report of Vellore. In this context Dr. Deb Roy was asked in Q. 16 “Dr. Deb Roy – I suggest that you have not gone through the CMCH of Vellore Report carefully, as such you supported your friend Dr. K. K. Chattopadhyay.

          Ans.  I doin’t agree.

          It is our candid opinion that Dr. Deb Roy has tried intelligently to avoid the actual reply to this question. And our presumption is that in order to lend support to his friend Dr. Deb Roy has given a biased opinion and he is not also agreeable against the Q. 17 relating to payment of Compensation to the Complainant for the deficiency of service by Dr. Chattopadhyay, and we are of the opinion that Dr. Chattopadhyay was afraid that if he gives his true, correct and transparent opinion he was afraid that the cat might have come out of the bag.

          We have also perused the BNA of the Complainant filed on 05.11.2009 wherein the Complainant has categorically stated about the medical negligence committed by Dr. K. K. Chattopadhyay and he has also categorically stated that even inspite of his request Dr. Chattopadhyay refused to change the bent nail into his left femur. We have also perused the BNA of Dr. Chattopadhyay wherein he has not only stated the allegation of the Complainant for medical negligence but he has prayed that for false and frivolous allegation adverse inference should b e drawn against the Complainant. He has also given the list of dates of medical treatment rendered by him to the Complainant and in his BNA he has categorically stated, vide treatment dated 01.05.2004 stating therein “The X-Ray showed confirmation  of some callus”. Confirmation of callus indicates of bone fracture is not a normal phenomenon. Until and unless there is defect in the surgical operation, and more particularly, when the bone is not united callus cannot be formed.

          Ld. Lawyer of the O.P. has referred to a decision reported in (2005)6SC1. This case is popularly known  as Jacob Mathews Case. This case involve the question  of death of an aged patient suffering from advanced stage of terminal cancer and extremely sufferisng from breathing troubles and succumbed due to non-availability of oxygen cylinder which was highly necessary to ssave the life of the patient due to administration of a particular medicine by doctor and regardidng such application of medicine he had no lkn owledge and so it constitutes prima-facie criminal medical negligence punishab le under Section 304A of the IPC. Further there is question of Tort is involved. But in the present case the observation of Jacob Mathews Case is not squarely applicable because it is neither a case of 304(A) IPC nor the question of Tort is involved. In Jacob Mathews case when the oxygen cylinder was highly necessary to save the imminent danger of the life of the patient it was found that the oxygen cylinder was not availab le and whens the oxygen cylinder was brought from the adjoining room tjere was no arrangement to make it functional immediately and when another doctor came he found the patient was dead. So lthe case was registered under Section 304(A)/34 IPC. So the very facts of Jacob Mathews case ipso-facto suggests that it is not applicable squarely in context of the spresent case. We have already mentioned that after fixing of K-Nail in  the left femur the Co,mplainant came to the O.P. doctor complained of severe pain. O.P. doctor took check X-Ray and it was found from the X-Ray Report that the K-Nail was bent. The Co,mplaiknant requested for replacement of the same by a new one by way of manipulation. O.P. Dr. refixed the same with the assurance that the fractured bone will b e united, and he refused to change the nail. So again we express our opinion that in view of the background of the present case the observation of Jsacon Mathews Case is not applicable.

He has also referred to another decision reported in  III2009CPJ49(NC) where the fhand of a child was fractured and it was alleged that doctor wrongly plastedd dit. Subsequently when the defect was found the plaster was removed and the fractured hand was replastered. And it was observed that second time plaster does not involve the question of negligence. Because the application POP Slab, particularly when  the normal procedure was adopted at the first instance but when the swelling persited at the place of injury and the fracture was fully joined and through the professional expertise of an experienced and specialist doctor was question by the Complainant. But in the instant case we have already said that even inspite of assurance of Dr. Chattopadhyay he found swelling and paid and shortening of left leg even after operation. So this case is not also applicable in the background of the present.

          Therefore, considering facts, circumstances and evidence on record both oral and documentary and legal position we hold the Dr. K. K. Chattopadhyay guilty of medical negligence and accordingly the prayer of the Complainant is allowed as ordered hereunder.

Hence                            ordered –

                   That the Petition of Complaint filed by the Complainant Shri Deb Kumar Sarkar on 21.12.2005 is allowed on contest with cost.

          The O.P. Dr. Kali Kinkar Chattopadhyay is directed to pay Compensation  of Rs. 5,00,000.00 for his harassment, mental agony and physical sufferings, and

          Litigation Cost of Rs. 5,000.00.

          And the O.P. is directed to pay Grand Total of Rs. 5,05,000.00 positively within 45 days from the date of passing this judgement, failing which it will carry interest @ 10% per annum till full realization.