Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member:
(1) This appeal takes an exception to an order dated 08.11.2004 passed in Consumer Complaint No.50/2009 Waman Bhimrao Jadhav V/s. Dr.Waibhav Gandhi & Anr., by Consumer Disputes Redressal Forum, District Solapur (‘the Forum’ in short). The consumer complaint relates to alleged medical negligence vis-à-vis deficiency in service on the part of treating Doctors/Respondents, i.e. original Opponent Nos.1 and 2. The Forum dismissed the complaint and feeling aggrieved thereof original Complainant preferred this appeal.
(2) Undisputed facts are that while working as a Labourer on the construction of Well in the field of one Changdeo Mahadeo Sawant, on 08.02.1998 around 02.00 p.m. the stones (darad) fell on Appellant/Complainant – Waman Bhimrao Jadhav, (hereinafter referred to as ‘the Complainant’). As a result of which he had sustained compound fracture of his left hand. His employer got him admitted at the hospital of Respondent no.1/Original Opponent No.1 Dr.Waibhav Gandhi (hereinafter referred to as ‘Dr.Gandhi’). He was given treatment over there. A plaster was also applied after cleaning his wound. However before the bones could be set, on 12.02.1998, according to Complainant, he was driven out of hospital on the ground that he had not paid the charges. He was admitted soon thereafter (on the same day) in the hospital of Respondent No.2/Opponent No.2 Dr.D.S.Thaware, (hereinafter referred to as ‘Dr.Thaware’). His broken bones were fixed after surgery and he was admitted there upto 05.03.1998. He was discharged and he was called on for examination and follow-up treatment on 17.04.1998. It is alleged by the Complainant that the fixing of compound fracture was negligently carried out by Dr.Thaware and therefore, ultimately he referred himself to Corporation hospital at Pune, where he had received proper treatment. But, ultimately he left with 15% disability. The Consumer complaint is filed against Dr.Gandhi and Dr.Thaware, but it stands dismissed, supra.
(3) We heard Authorized Representative - Mr.A.B. Jadhav, for the Appellant, who also filed written brief of arguments (Exhibit-1), Ms.Archana Sabnis, Authorised Representative for Respondent No.1 and none appeared for Respondent No.2 – Dr.Thaware.
(4) In the instant case though causes of actions as against Opponent Dr.Gandhi and Opponent Dr.Thaware are joined together, they are different and distinct and not connected with each other. As against Dr.Gandhi, the grievance is about not extending the required treatment after admission of the Complainant to his hospital on the pretext that entire charges demanded were not deposited on behalf of the Complainant. It is alleged that after giving the initial treatment, soon after admission in the hospital of Dr.Gandhi after the event on 08.02.1998 Dr.Gandhi told the Complainant and the person attending him that `15,000/- would be required. `1,000/- were deposited at the time of admission by Complainant’s employer. It is further alleged on behalf of Complainant that `3,000/- on 08.02.1998 and `7,000/- on 10.02.1998 were further deposited on his behalf. However, Dr.Gandhi disputed such claim and sworn his own affidavit accordingly. The record, i.e.indoor case register and entry at serial no.311 of his hospital also does not reflect any such payment and thus, it corroborates the version of Dr.Gandhi. Against this, there is oral statement in the form of affidavits of co-labourers, Ashok Bhosale and Appasaheb Jadhav. In the light of above referred circumstances and considering the preponderance of probabilities the version which find support from the document, i.e. hospital register and which we have no reason to hold that they are manipulated entries, needs to be accepted. Thus, it further corroborates the case of Dr.Gandhi that without receiving further treatment and to avoid the payment towards expenses incurred till then, the Complainant on his own left his hospital.
(5) Complainant tried to project the case that on 12.02.1998 without giving further treatment he was driven out of the hospital by Dr.Gandhi. Had it been so, it would have been reflected in the hospital record and the entries on admission made by Dr.Thaware. This documentary evidence corroborates the case of Dr.Gandhi on the point, supra. Therefore, such case of Complainant needs to be rejected.
(6) It is the case of Dr.Gandhi that seeing the condition of the Complainant and the state of his compound fracture and other injuries the patient was required to be made stable before doing any surgery. In the background of the circumstances of this case, his such statement needs to be believed. Affidavits of Dr.B. Shivshankar and Dr.Pradeep Kothadiya, further corroborate the case of Dr.Gandhi on this point. There is no reason to disbelieve their such version.
(7) Thus, the Complainant miserably failed to establish that on the pretext of non-receipt of the fees, Dr.Gandhi denied him the necessary treatment. Therefore, no case is established against Dr.Gandhi for alleged medical negligence vis-à-vis deficiency in service, as alleged.
(8) Coming to the case of Dr.Thaware and the treatment received at his hospital, whatever is done by Dr.Thaware in fixing the compound fracture of the Complainant appears to be done as per the medical protocol and science. The documents of post operative examination dated 17.04.1998 further reflects that the operation was successfully carried out and there were desired results. Against this, there is only an oral averment and argument from a layman to the fact that fixing of bone by particular nailing and using the steel plates was not properly done by Dr.Thaware, needs to be rejected. Referring to the affidavit of Dr.Shekhar Somane, filed on behalf of Complainant, who had opportunity to examine the Complainant on 12.06.1998, after Complainant, pending the treatment of Dr.Taware, on his own went to Y.C.M. Hospital, Pimpari, Pune. In his Affidavit Dr.Shekhar Somane observed that though the earlier operation of nailing to compound fracture was carried out it did not result into proper cementing of the fracture bone and therefore, he had removed the nail and applied the bone grafting and gave further treatment. He did not mention anything about the earlier operation carried out at the hospital of Opponent Dr.Thaware was erroneous or that it was carried out negligently. Thus, this affidavit corroborates the case of Dr.Thaware and considering all these aspects and preponderance of probabilities, we find that Complainant also miserably failed to establish any cause of medical negligence vis-à-vis deficiency in service against Dr.Thaware too.
(9) Hence, we do not find any fault with the impugned order passed by the Forum and we have no reason to take different view than what has been taken by the Forum. Considering these aspects we further find the appeal devoid of any substance and pass the following order:
O R D E R
(i) Appeal stands dismissed.
(ii) In the given circumstances, no order as to costs.
Pronounced on 30th November, 2010.
