BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 49 of 2017.
Date of Institution : 6.3.2017
Date of Decision : 11.12.2017.
Sanjay aged about 30 years son of Shri Roshan Lal, resident of Ward No.31, Chattergarh Patti, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Dr. R.K. Jain, Jain Multispecialty Hospital, Near Sharma Petrol Pump, Opposite R.S.D. School, Sangwan Chowk Sirsa, Tehsil and District Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.R.L.AHUJA………………. ……PRESIDENT.
SH. MOHINDER PAUL RATHEE………MEMBER.
Present: Sh. K.S. Punia, Advocate for the complainant.
Sh. Manav Goyal, Advocate for the opposite party.
ORDER
The case of the complainant in brief is that he belongs to a poor family, he is not much educated and he lives in a rented house. That the complainant is a labourer by profession and is a painter. On 20.7.2015, the complainant was assigned the work of painting in shop no.34, Anaj Mandi, Sirsa and while doing his work, he fell on the roof from enough height on account of which his right hand was fractured. That immediately after this accident, the complainant approached to the opposite party. The op after inspection of the hand of the complainant gave treatment to him with the promise that within a short period his hand will become okay and he will be able to do his work. It is further averred that complainant continued to follow the treatment given by the op and more than a sum of Rs.1,00,000/- has been spent by him on his treatment including fees paid to the op doctor but there was no much improvement in his hand. The complainant even asked about the same to the op but the op promised that if the prescription given by him is followed by the complainant, his hand will be in the same condition as it was. Believing upon the version of the op, the complainant kept on following his treatment but his hand is still not working properly. The profession of the painter requires a totally physically fit person but on account of negligence of the op, the complainant has become totally unfit person and he cannot do any work what to talk about the work of painter. The complainant has become unable to do any job and his family was totally dependent upon him. Now the complainant has become helpless and is now dependent upon his family. It is further averred that he has no money even to pay the rent of his house. He and his family being poor were already facing difficulties and hardship. The op has negligently treated the complainant and the act and conduct of the op clearly amounts to deficiency in service, unfair trade practice and gross negligence. The complainant approached the op and requested him to compensate him or in the alternate to give proper and safe treatment to him but the op kept on avoiding the complainant and now he has flatly refused to do any kind of help in this regard. Hence, this complaint seeking compensation of Rs.2,00,000/- on account of negligence, Rs.1,00,000/- as compensation on account of unnecessary harassment and hardship etc. and Rs.50,000/- as penalty on account of deficiency in service.
2. On notice, opposite party appeared and filed written statement taking certain preliminary objections regarding maintainability; cause of action; estoppal; suppression of true and material facts etc. On merits, while denying the contents of the complaint, it is submitted that as a matter of fact, the complainant was admitted in the hospital of answering op on 19.7.2015 at 2.35 p.m. with alleged history of fall from height, leading to pain, swelling and unnatural mobility of right arm above the elbow level. The complainant was diagnosed to be having fracture of lower 1/3rd of humerus bone. The complainant was operated in the form of close reduction under image intensifier control and fixed with retrograde percutaneous kirsener wires to hold the reduction in proper position alongwith additional POP cast for extra support. This method of reduction and fixation was adopted in order to do the biological fixation i.e. without opening the fracture site and without disturbing the normal anatomy as Humerus fractures are common, their management remains controversial. Infection, neurovascular injury, joint problems and non-union are recognized complications of surgical treatment. These complications can be decreased by opting for a surgical treatment that is less invasive and safe as mentioned in the literatures. However, no such assurance or promise of any kind whatsoever as alleged was made to the complainant regarding the results/outcomes of treatment. It is further submitted that no such huge amount was charged by the answering op for the treatment. The fracture was uniting with the treatment but the complainant did not bother the instructions imparted by the answering op as regards to give rest to the fractured part and not to do any kind of work with the fractured limb, but the complainant kept on doing his labour work continuously inspite of repeated advices of the answering op. Apart from it, the complainant also did not take any medicine prescribed by the answering op. After some time of the operation, when the complainant visited at the hospital of answering op, then on examination it was found by the answering op that some movement was present at the fractured site, then the complainant was advised to give proper rest to the fractured part and he was strictly advised not to do any kind of work with the same. The complainant did not take rest properly as prescribed by the answering op and he has been doing his labour work continuously. Remaining contents of the complaint are also denied.
3. The complainant produced his affidavit Ex.CW1/A and x-rays Ex.C1, Ex.C2. On the other hand, op produced his affidavit Ex.RW1/A, copy of medical literature Ex.R1 and copy of admission and discharge record Ex.R2.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. It is an admitted fact that complainant Sanjay was admitted in the hospital of opposite party on 19.7.2015 with alleged history of fall from height leading to pain, swelling and unnatural mobility of his arm above the elbow level. The complainant was operated in the form of close reduction under image intensifier control and fixed with retrograde percutaneous Kirsener wires to hold the reduction in proper position alongwith additional POP cast for extra support. The op doctor R.K. Jain has claimed in his affidavit as well as in the written statement that this method of reduction and fixation was adopted in order to do the biological fixation i.e. without disturbing the normal anatomy as Humerus fractures are common, their management remains controversial. Infection, neurovascular injury, joint problems and non union are recognized complications of surgical treatment. It has been averred that these complications can be decreased by opting for a surgical treatment that is less invasive and safe. To support his plea, he has placed on file a copy of medical literature as Ex.R1. Further, admission and discharge record (Ex.R2) has also been placed by the op doctor on the file. A study of this admission ticket and other relevant papers reveal that the Kirsener wires method was adopted by doctor R.K. Jain for the treatment of right arm of the complainant. The complainant has stated in his complaint in para no.3 that his right hand was fractured but the fact is otherwise as the left arm above the elbow was fractured and this fact was noticed by the Forum when complainant was asked to show place of fracture. Learned counsel for the complainant has stated that this has happened due to inadvertence and typographical mistake. During the arguments, learned counsel for op claimed that patient/ complainant did not follow the instructions of the treating doctor and did not take total bed rest and due to own wrongs of the complainant, his bone could not be properly united, hence the complainant is himself liable for his own wrongs and not entitled to any compensation. But we are of the considered opinion that doctor R.K. Jain failed to notice even the correct arm of the patient and the x-rays Ex.C1 and Ex.C2 submitted by the complainant tell the true state of affairs and the op doctor has been negligent in treating the complainant and adopted unfair trade practice due to which the arm of the complainant is still bend and cannot be straight. The op doctor has not adduced any evidence in support of his plea that complainant did not take total bed rest and has been doing his labour work continuously despite his instructions not to do so.
6. It is established on record beyond any doubt that complainant has not been properly treated by the op doctor as per laid down medical ethics and complainant has been rendered incapable for carrying out his routine labour painting work for improper joining of his left arm for the whole life and requires further treatment and as such the complainant is entitled to compensation from the opposite party on account of wrong treatment, unnecessary pain, agony, hardships and harassment. The complainant has claimed in his complaint more than a sum of Rs.1,00,000/- spent on his treatment but he did not submit any evidence in this regard. Therefore, this Forum has assessed a reasonable amount in this regard and are of the considered opinion that an amount of Rs.40,000/- to be paid to the complainant by op doctor as compensation would be just and proper amount.
7. In view of the above, we allow the present complaint and direct the opposite party to pay a sum of Rs.40,000/- as compensation to the complainant for expenditure incurred on his treatment, mental agony, pain and harassment etc. within a period of one month from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of filing of present complaint i.e. 6.3.2017 till actual payment. The opposite party is further directed to pay a sum of Rs.5000/- as litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. President,
Dated: 11.12.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
