Andhra Pradesh

Nellore

CC/50/2014

Shaik Anees Ahamad - Complainant(s)

Versus

Dr.C.Vijaya saradhi,Orchopaedic Surgeon - Opp.Party(s)

S.K.AbdulSamath

31 Dec 2015

ORDER

                                                              Date of filing       :  19-06-2014

                                                               Date of disposal  :  31-12-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Thursday, this the 31th day of December, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member                           

      

                                 C.C.No.50/2014

Sk.Anees Ahamad

S/o.Basheer Ahamad,

Aged about 40 years,

Residing at Rithwik Enclave,

Near Electricity Office,

D.No.26/3/1469/62,

Nellore City.                                                           …         Complainant

                      Vs.

                                                                            

Dr.C.Vijaya Saradhi,

Orthopaedic Surgeon,

16-2-49, Kasturidevi Nagar,

Pogathota,

NELLORE CITY.                                                    …        Opposite party

 

This matter coming on 12-11-2015 before us for final hearing in the presence of Sri Sk.Iqbal, Advocate for the complainant and Sri R.Rajasekhar,  Advocate for the opposite party and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

      The complaint is filed by the complainant against the opposite party directing him to pay a sum of Rs.1,00,000/- towards the expenses incurred by him for re-operation by the Dr.Sannapa Reddy Krishna Reddy, Sowjanya hospital, to pay a sum of Rs.1,00,000/- towards his pain, suffering and mental agony and also to grant costs of Rs.10,000/- and also grant further relief or reliefs as the Hon’ble Consumer Forum  may deemed it fit and proper in the circumstances of the case.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I. It is the case of the complainant that he had met with a scooter accident, at Gudur on 29-06-2012 and suffered fracture injury on his left hand arm and on the same day he was shifted to Government hospital, Gudur because of his severe fracture injury on the advice of the doctor, Soujanya hospital, Nellore.  Subsequently, later on he was shifted to the opposite party’s hospital on the same day, by name and style of Best hospital, Kasturidevi Nagar, Pogathota, Nellore city. The opposite party was an orthopedic surgeon.  The complainant was admitted by the opposite party as in-patient under O.P.No.1574 on                29-06-2012.  The opposite party had conducted an operation to his left hand and implanted the steel rods in the left hand arm.  The opposite party had charged about Rs.60,000/- for conducting the surgery, medical expenses, room charges and other expenses. The complainant had discharged from the opposite party’s hospital on 02-07-2012.  The opposite party had advised the complainant to take 3 months rest and at his own interest, he took 4 months rest.  The complainant is a private electrician who is doing electrical works and after 4 months of his rest, he attended to his work.  Later on after few days, the complainant had again suffered pain in his injured operated left hand arm and day to day it became unbearable pain.  Subsequently, the complainant had consulted the opposite party and the opposite party had advised him to take a X-ray of his left arm.  As per X-ray of the complainant, it was revealed that one of the steel rod implanted in his left arm is broken and when the complainant had questioned the opposite party as to why steel road was broken and the respondent had gave evasive replies by stating that it will no guarantee for anything and then the complainant had sought for a remedy.  The opposite party had asked the complainant to undergo the second operation to his left arm.  It is also further submitted by the complainant that in para-4 of his complaint that he took 2^nd opinion of other doctors as to what was the cause for breakage of the implanted steel roads.  After going through the X-rays and examining his left arm, they opined that implantation of steel roads had failed and due to that failure there is abnormal mobility of the steel roads which causing unbearable pain to the complainant.

 

2.    Later on, the complainant had taken treatment from Dr.Sannapareddy Krishna Reddy, Soujanya hospital, Nellore and also undergone second time operation to his left arm.  He incurred further expenses of Rs.1,00,000/- for his second time operation, medical bills and other expenses.

 

3.    It is also further submitted by the complainant that the opposite party did not take proper care in diagnosing his problem and conducting the operation negligently by no good quality steel rods, improper diagnosing and conducting operation by the opposite party amounts to his negligent act and deficiency in service as after the operation by the opposite party due to implantation failure, he was subjected to severe pain and mental agony.  Because of the negligent act of the opposite party, the complainant had suffered severe mental agony and loss of earnings, since he could not attend to daily works and also forced to spent Rs.1,00,000/- for second operation by the said Dr.Sannapareddy Krishna Reddy, Soujanya hospital, Nellore.  There is no need for him to lift the heavy materials. By the breakage of steel rods, implantation in the complainant’s left arm, he could not attend to his daily works and thereby lost his earnings.  The family of the complainant is depends upon his earnings and he is only an earning hand.  He was suffered both physically and mentally and loss of his income is caused purely due to the negligent act of the opposite party.  He was also put to severe financial loss and there is a clear deficiency in service on the part of the opposite party towards the complainant.  The complainant is a consumer within the meaning of the C.P.Act, 1986.  Hence, the complaint.

II.  DEFENCE:

      The opposite party was resisted the complaint of the complainant and denied the allegations made against him.  The complaint is not maintainable either in law or on facts.  The complainant is put to strict proof of his allegations.

      It is submitted by the opposite party in para-3 of his counter/written version that the opposite party was not aware of the complainant that he was met with a scooter accident at Gudur on 29-06-2012 and suffered fracture injury on his left hand arm and denied other allegations of the complainant in the complaint.  It is true that the complainant was discharged from the opposite party’s hospital on 2-7-2012.  It is also true that the opposite party had advised the complainant to take three months rest.  But it is denied that the complainant took rest on his own interest for 4 months. 

Denial of the allegations of  the complainant in the complaint by the opposite party:

(a)  The opposite party was not aware of that the complainant was a private electrician doing electrical works and after 4 months of his rest, he was attended to his work.  It is also not true to say that after a few days, the complainant had suffered pain in his injured arm and operated left hand arm and subsequently day by day the pain became unbearable.    It is also not true to say that the complainant had contacted the opposite party to take X-ray of the left arm and the x-ray, it was revealed that one of the steel rods implanted in his left hand arm which was broken and when he was questioned the opposite party as to why the steel rod was broken and the opposite party had gave evasive replies stating that there was no guarantee for anything and the complainant was sought for a remedy and the opposite party had asked the complainant to undergo 2^nd operation his left hand  arm.

(b) The opposite party had denied that the complainant took a 2^nd opinion of other doctors as to what was the cause for breakage of the implanted steel rods and also further denied that after going through the X-rays and examining his left hand arm and they opined that the implantation of steel rods were failed and due to that failure, there was abnormal mobility of the steel rods which causing the unbearable pain to the complainant.  It is also not true to say that thereafter the complainant took treatment from one a Mr.Dr.Sannapareddy Krishna Reddy of Soujanya hospital, Nellore and also undergone the 2^nd time operation to his left hand arm.  The complainant had incurred further expenditure of Rs.1,00,000/- for 2^nd time operation, medical bills and other expenses.

( c )  It is also further submitted by the opposite party that he did not take proper care in diagnosing problem of the complainant and conducted an operation negligently by not implanting good quality steel rods and improper diagnosing and conducting the operation by the opposite party and it amounts to negligence of the opposite party and deficiency of service and also due to the implantation of the failure was subjected  to severe pain and mental agony.  Because of the negligence act of the opposite party, the complainant had suffered severe mental agony and loss of his earnings since he could not attend to his daily works and was also forced to spend Rs.1,00,000/- for 2^nd operation by the said Dr.Sannapureddy Krishna Reddy of Sowjanya Hospital, Nellore and further denied that the complainant was doing an electrical works  and there was no need for him to lift heavy materials and further denied that for breakage of the steel rod implanted in the complainant left hand arm and the complainant could not attend to his daily works and thereby lost his earnings.  The complainant was put to severe financial loss and it is also denied that the opposite party was not only negligent but also irresponsible while treating him. 

 

Admitted facts of the case by the opposite party:   

      (d)  It is also further submitted by the opposite party in para-7 of his written version/counter that in fact the complainant was admitted in the opposite party’s hospital on 29-06-2012 and complained the pain in his left hand arm and thereafter took X-rays and the opposite party was found that bone was fractured and advised him to conduct an operation for cure.  Then, the opposite party was conducted an operation on the left hand arm of the complainant with nominal amount only and discharged him on       02-07-2012 and strictly advised him to take rest and  there was no manual work. But, the complainant did not follow the  advises of the opposite party  and moreover removed splint given to him for protection of surgery of left hand arm, immediately after his discharge and used to go to work on motor bike.  The wife of the complainant came and wept in-front of the opposite party in the presence of the very complainant.  She told that her husband was not at all taking care of operation and he was going on motor bike to his work.  The above said fact of motor bike on related problem, was clearly mentioned on the prescription of the opposite party dated 6-11-2012 on its reverse side.  The complainant himself was grossly negligent in taking care of operation on his left hand arm.  This was the cause for broken rods.  He was advised repeat surgery once again.    

(e) It is further submitted by the opposite party in para-7 of his written version/counter that the complainant came along with his relatives and elders to the opposite party and asked for repeat surgery at concessional rates as he was poor and so he had to go to works. So, they are also requested the opposite party to excuse carelessness of complainant.  It was also agreed by the opposite party to conduct 2^nd operation at discounted rates. But, the complainant did not turn-up for surgery.  The opposite party had further stated that rods used by him were of standard quality and regularly used by all Ortho surgeons.  In this particular case, rod was broken because the complainant using his operated left hand arm for bike travel and not because of substandard quality.  The surgery was done with utmost care and so that fracture was fixed by plates and screws which were of proper quality and length.  It was mentioned in reply notice issued by the opposite party through his counsel to the counsel of the complainant. There is no deficiency in service and negligent act committed by the opposite party in performing an operation on the left hand arm of the complainant.  Hence, the opposite party has prayed that the Hon’ble Consumer Forum may pleased to dismiss the complaint with exemplary costs.

III.  The complainant had filed an affidavit on 04-6-2015 as PW1 and he had also filed his written arguments on 31-08-2015 before this Forum and the documents were marked on his behalf as Exs.A1 to A6, whereas the opposite party had  filed the documents which were marked as Exs.B1 and B2. The opposite party had also filed an affidavit as RW1 on 19-01-2015.  The opposite party had also filed his written arguments on 19-08-2015 in support of his case. 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    party towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, and they have been taken-up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein. It is nothing but repetition of them once again.

Oral Submissions by the learned counsel for the complainant:

         Sri Sk.Iqbal, the learned counsel for the complainant has also vehemently argued that the complaint and his affidavit and thereafter his written arguments may be read as part and parcel of his oral arguments.  He has further argued that the opposite party has performed an operation of the complainant without taking due care and precaution and prior to his operation, opposite party has never made any tests and diagnosis and moreover implanted sub-standard quality rods and thereby causing much pain after surgery of complainant’s  left hand arm.  During the course of oral arguments of the said learned counsel for the complainant, he has further contended that the opposite party had asked the complainant to undergo 2^nd operation and prior to that improper diagnosing and conducted the 1^st operation by the opposite party amounts to negligent and deficiency in service.  He has also further alleged that Ex.A2 is the prescription     dt.06-11-2012 and on reverse side of the prescription that bike related only and that does not mean that failure of the implantation of steel rods is caused by driving the bike by the complainant. The complainant had undergone treatment from Dr.Madhukrishna Reddy, Tirupathi and got a second operation to his left hand arm as per Ex.A4. He has finally argued that if 1^st operation on complainant’s left hand arm by the opposite party was done properly without fault and 2^nd operation of another doctor will not arise.  So, there is a deficiency in service and negligent act committed by the opposite party towards the complainant.  Hence, the Hon’ble Consumer Forum may be pleased to allow the complaint as prayed for.

Oral Submissions by the learned counsel for the opposite party:

  On the other hand, the learned counsel of the opposite party Sri R.Rajasekhar has also vehemently argued that the written version/counter, affidavit and written arguments of opposite party may be read as part and parcel of his oral arguments.  He has further argued that the complainant has not taken sufficient rest after 1^st operation of his left hand arm.  He has contended that Ex.B1 is the prescription of the complainant and it is clearly appears to be motor-bike related strain.  Ex.B2 is the cash receipt of Rs.2,650/- only and the opposite party has not taken extra amount as alleged by the complainant in the complaint.  Ex.B3 is related to literature of good quality of in-plates used in the operation of left hand arm of the complainant.  During the course of his oral arguments of the case, the said learned counsel for the opposite party, has further stated that because of negligent attitude adopted by the complainant after 1^st operation conducted by the opposite party, is the root cause for the 2^nd operation.  The concerned X-ray of the 1^st operation is not filed by the complainant before the Forum to establish the facts alleged by him against the opposite party.  It is mere negligence of the complainant only, it is necessitated for the 2^nd operation.  Hence, the Hon’ble Consumer Forum may be pleased to dismiss the complaint with exemplary costs.

Forum’s Findings and observations

             Heard, the learned counsel for the both parties and perused the record very carefully. Parties are led their evidence by way of affidavits.  At the time of hearing of this Consumer Case, both the learned counsel for the parties who are appearing for the parties took us through relevant documents, for appreciating the contentions raised in the complaint.  This consumer case is lingering on since one and half years for a decision for one reason or other as the case may be.  We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. One who seeks equity must come to the Forum/Court with clean hands.

      To appreciate the controversy, it would be an appropriate if we narrate all the circumstances of the case both on question of fact as well as on question of law in detail.  The basic facts of the case are not disputed and repetition of them is hereby avoided.

     It is apparently admitted by the opposite party that opposite party had performed 1^st operation of complainant’s left hand arm on 29-06-2012 at        2-30 p.m. as per Ex.A1.  It is also true that as per Ex.A2 on 06-11-2012, on reverse side of the said prescription written as in-plant failure and it was broken according to the opposite party.  But it is missing as per Ex.A2 and Ex.A1, what type of treatment that the opposite party had adopted before and after surgery, is not clearly mentioned by him in those documents.  There are no any notes with regard to examining the complainant by the opposite party.  The opposite party himself wrote that in-plant failure and plate broken in prescription of the complainant on 6-11-2012 but also mentioned as              5-11-2012 on Ex.A2. There is no clarity in expressing his opinion. It is an admitted fact by the opposite party.  Adverse inference can be drawn from the facts and circumstances of the case.  The exchange of legal notices and reply by the respective counsels of the parties as per Exs.A5 and Ex.A6. Except Exs.B1 and B2, no other treatment process of documents are filed by the opposite party to prove that there is no negligence on his part towards the complainant.   

      Let us examine the scope of negligence and their (doctors) obligation to a patient and their liability.

The meaning of negligence :-

          ‘Negligence’ means that neglecting one’s duty of care owing to another person.  The mere negligence is not enough to accuse a medical man but gross-negligence-gross negligentia is needed.  But, the concept has undergone sea change and there is hardly any difference between negligence and gross-negligence, it is something with the addition of vituperative epithet. Medical negligence of a doctor is actionable under Indian Contract, 1872 (section 73 – compensation for loss of damage caused by breach of contract).

      In a nutshell, ‘medical negligence’ is a term attributed to an act or omission of a medical practitioner when he deviates from the required standard of duty.  To prove medical negligence on the part of a doctor or medical practitioner a high degree of probability is required.  There must be a direct connection between the ailment and the treatment given to the patient by the doctor.

The concept of Medical negligence:-

      The Hon’ble Supreme Court in the leading case of Jacob Mathews Vs.State of Punjab and another, III (2009) CPJ 9(SC) – 2005 CrlJ, 3710) has interpreted the term ‘negligence’.  The Hon’ble Supreme Court of India had observed that a professional may be held liable for negligence on one of the two findings either he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 

The role of hospital and doctor:

        Burden lies on the hospital and the concerned doctor, who treated the patient to prove that there was no negligence involved in the treatment.  In both contingencies i.e., ‘contract of service’ and ‘contract for service’, Courts have taken a view that the hospital is responsible for the acts of their permanent staff as well as for the staff, whose services are temporarily requisitioned for treatment of patients.  Therefore, hospital can discharge burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died.  With this judgment, the entire burden cannot be placed on the complainant to prove negligence and it is the duty of the hospital also to satisfy that there was no lack of care of diligence.  The hospitals are institutions, people expect better and efficient services, if the hospital fails to discharge its duties through its doctors being employed on job basis or employed on contract basis, it is the hospital that has to justify and by not impleading a particular doctor will not absolve of its responsibility.    

    The core point is that whether the opposite party had committed medical negligence and is there any deficiency in service towards the complainant on the part of the opposite party. ‘Medical negligence’ is a complicated subject and the liability of doctors or doctor depends upon the facts and circumstances of the case brought on record. ‘Negligence’ in its acceptance includes acts of omissions as well as commissions. Each case has to be judged on its own facts. The most of the consumers are unaware of whether the medicines prescribed to them are harmful or un-harmful or necessary or unnecessary.  Normally, the patient comes to private clinic/hospital with the hope that the hospital authorities would take proper care.  It is the duty of the hospital to satisfy that there was no lack of care or diligence.  People expects an efficient service from the hospital and if the hospital fails to discharge their duties through their doctors, it is the hospital which has the obligation to justify the treatment administered by the doctors who employed by it and the patient cannot be expected to know the particulars each and every doctor who treated him at the hospital.  In majority of the cases, the principle is upheld that the complainant has to discharge initial onus cast upon him and the next movement the onus shifts to the hospital or the treating doctor who have to satisfy that the Forum/Court that there was no lack of care or diligence.  Medical practitioner would be liable only where his conduct falls below that of a reasonably competent doctor.  Consumer Fora are not bound to refer each and every matter for expert opinion to a panel of doctors – 2011 (2) CPR (NC) page no.7. The Hon’ble Supreme Court had granted compensation of one crore rupees to victim of medical negligence. (The highest ever awarded against a hospital in medical negligence case in India – Nizam’s Institute of Medical Sciences Vs. Prasant.S.Dhananka II (2009) CPJ 61(SC).

Doctor should take reasonable care:

   The doctor should take due care in communicating to the patient, the risks involved, the exact prognosis after the operation and should explain clearly the complications involved. In several cases we see that the inherent risks of surgery is not properly explained to the complainant.  The doctor should follow the ethics of medical parlance and treatment and avoid unnecessary operation and negative defensive medicine in order to protect themselves against the possible litigations and thereby resort to various diagnostic investigations before prescribing a treatment.  The defensive medicine used should be positive in nature which is to benefit the patient.  The medical records and the case -sheet should be clearly written in legible handwriting and handed over to the patient whenever the patient requests for it.  The doctor should avoid making correction in the case sheet and if necessary, instead of overwriting the corrections, should be made in clear handwriting.   Case-sheet is a matter of hospital record and should be maintained in a proper manner revealing the line of treatment given to the concerned.  ‘Medical Records’ are a doctor’s best friends and he should take the initiative to maintain them with integrity and consciousness. 

        Law recognizes of the dangers which are inherent is surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care.  Approach of the court is to require that professional men should possess a certain minimum degree of competence and that  they should exercise reasonable care in discharge of their duties – A.S.Mittal Vs. State of A.P. (AIR 1989 SC1570) = (1989 (3) SCC223).

    Constituents of medical negligence is now well-established by a plethora of Rulings of Hon’ble Supreme Court of India and Hon’ble National Commission, New Delhi. We rely upon the decisions of Hon’ble Supreme Court of India in V.P. Shantha’s case and Jacob Mathew’s case.

     Heavy burden cannot be placed on the patient or family members/relatives to implead all those treating doctors who treated the patient or nursing staff to be impleaded as parties.

Relevant case-law:

  In  Savitha Garg Vs. National Heart Institute reported in Supreme Court and National Commission on Medical Negligence and Insurance under Consumer Protection = IV, (2004) CPJ 40 (SC), it is held by the Hon’ble Apex Court that law regarding  non-joinder of necessary parties that Consumer Forum is Primarily meant to provide better protection in the interest of the consumers and not to short-circuit the matter or to defeat the claim on technical grounds.          

      In 1969, the Hon’ble Supreme Court of India had an occasion  to deal with the issue relating to medical negligence in Dr.Lakshman Balakrishna Joshi Vs. Dr.Trimbak Bapu Godbole, AIR 1969 SC 128 = 1969(1) SCR 206, considering the mater, the Hon’ble court observed that a medical practitioner when consulted by a patient owes him the duties, like (a) duty of care in deciding whether to undertake the case; (b) duty of care is deciding what treatment is to be given, and ( c ) duty of care in the administration of the treatment.  The breach of any of these duties gives to the patient a right to action for negligence.  Explaining the nature of the duty care, the Supreme Court of India expressed that  the petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a  reasonable degree of care, neither very high nor very low; to be judged in the light of the particular  circumstances of each case.

   The Supreme Court in its landmark judgment in Indian Medical Association Vs.V.P.Shantha (AIR 1996 SC 550 – 1995(3) CPR 412 (SC)), the first decision on the subject under C.P.Act, discussed at length the issues of medical services and the liability of medical professionals and hospitals.

 

1. Complainant must prove his claim by reliable evidence – 2011 (3) CPR 449 (NC).

 

2.  One  who makes an allegation is required to prove it beyond doubt – 2011 (2) CPR 46 (NC).

 

3.   Consumer For a can award  compensation as deemed proper, reasonable   and not as per   asking of complainant – 2011 (2) CPR 282 (NC).

 

4.    Complaint is based on deficiency in service  must establish the same by leading cogent evidence  - 2011 (2) CPR 68 (NC).

 

5. In the case of consumer disputes redressal Forums, the judgments must set out the points in dispute and a decision on those points supported by some reasons – 1995 (I) CPR 832 (NC).

 

6.  In a medical negligence case, the doctors and the concerned hospitals have a responsibility to correctly explain their conduct and their records should prove that there was no negligence on their part – 2008 (3) CPR 265 (NC).

 

7. Repeated deficiency in service of the service provider amounts to gross deficiency in it’s service for which the consumer has to be adequately compensated by it which is reported in  2010 C.T.J. (N.C.) 1159.

 

8.  A quasi – judicial authority must record reasons in support of its conclusions  - 2011 CTJ (SC) (CP) 128.

 

The concept of “compensation”:

    In Ghaziabad Development Authority Vs. Balbir Singh, “(2004) CPJ 12(SC) = 2004(5) SCC 65, the Supreme Court of India opined that under the Law, the Consumer Protection Act, 1986 has a wide reach and the Commission has jurisdiction even in cases of services rendered by statutory and public authorities, holding: “…. The word compensation is of a very wide connotation.  It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss.  The provisions of the Consumer Protection Act, 1986 enable a consumer to claim and empower the Commission to redress any injustice done.  The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him.  The Commission/Forum must determine that such sufferance is due to malafied or capricious or oppressive act.  It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.  Such compensation is for vindicating the strength of Law….”

    Consumer For a can award compensation as deemed proper, reasonable and not as per asking of complainant – 2011(2) CPR 282(NC).  With regard to deficiency in service, the relevant aspect to be remembered that – To bring  home an allegation of deficiency in service, the element of willful action  (or as the case may be, in action) needs to be established and the onus of proof of such action / inaction lies on the complainant -  2010 (2) CPR 89 (NC).

 

       Compensation or damages can be  awarded only, if complainant has suffered loss or  damages due to negligence of manufacturer or service provider  - 2011 (2) CPR 101(NC).

The Hon’ble Supreme Court’s decisions on the topic of compensation:-

1. More specifically, the Hon’ble Supreme court of India has dealt with the subject of award of compensation by Consumer Courts in the case of Ghaziabad Development Authority Vs. Balbir Singh, 2004 CTJ 605(SC)(CP) wherein it has been asserted that “ compensation is a compense for the loss or injury.  It, therefore, necessarily has to correlate with the amount of loss or injury.
2. The Hon’ble Supreme Court in State of Gujarath Vs. Shantilal Mangaladas, AIR 1969 SC 634  discussed about award of compensation.
3.  The compensation to be awarded is to be fair and reasonable, held by the Hon’ble Supreme Court in the case of Charansingh Vs. Healing Touch Hospital and others III(2000) CPJ 1(SC) and also stressed the need of balancing between the compensation awarded recompensing the consumer and the change it brings in the attitude of the service provider.

    These decisions (b) and (c) are referred by the Hon’ble A.P.State Commission in the case of Ramayanam Varun Kumar Vs.Gannavaram Technical Training centre and another which is reported in 1(2015) CPJ(AP)’ while awarding compensation to Appellant/complainant. 

    The complainant has to prove functional disability in order to claim compensation for medical negligence.  Here, the complainant has proved the case with documents proof.

    After scanning the entire material on record and after having considered a rival submissions in the light of well-settled legal principles, we are of the clear opinion that this Consumer Case is a fit case to award Rs.50,000/- damages to the complainant. Realization of justice is the ultimate function of law.  Consumer Forums should be wary of passing cryptic orders in the adjudication of complaints 2007 CTJ AP P6(SC).  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. This case demonstrates the highly unethical and unscrupulous conduct of the opposite party.  The conduct of the opposite party is not only highly detestable but unpardonable also.    We are opined that the opposite party had not taken post-operative care and the complainant had approached the doctors as per Exs.A1 and A2 at Chennai and Tirupati.

Lapses on the part of the opposite party towards the complainant:- Reasons:

  We have not perused X-ray of the complainant and opposite party. They are not produced by them before us for our scrutiny.  What is the method of diagnosis of fracture of left hand arm of the complainant and treatment adopted by the opposite party, is not explained by him in the case of the complainant. Complete case-sheet, is not before us to verify and for a decision.  The complainant has not produced X-ray relating to his left hand arm problem. The doctor-opposite party has also not properly treated the patient-complainant and the writings and corrections in the prescription of the complainant i.e., Ex.A2 of the complainant gives us an impression that even though much space is provided in the said prescription of Ex.A2, is available, carelessly written on it for the reasons best known to the opposite party.  It creates a doubt in our mind.  The facts which are alleged by the complainant, not placed before us with regard to support documentary evidence of expenses incurred by him.  It cannot be believable those facts in the absence of documentary evidence. Exs.A3 and A4 are the documents which supports the case of the complainant.  They are relating to his treatment by the concerned doctors at Chennai and Tirupati.

        It is amply proved that the opposite party has not conducted an operation properly and thereby the complainant took further treatment from another doctor at Chennai and Tirupati. In the process the complainant had incurred some expenditure and the opposite party is liable to compensate adequately as it is mentioned in point no.3.  We are convinced with the arguments of the learned counsel for the complainant.  The opposite party is miserably failed in his attempt to convince us. We cannot measure the mental worry of the complainant in terms of money.  The complainant has suffered considerably since 1 ½ years till today. We find that there is a deficiency in service and gross- negligence on the part of the opposite party.  There is an ample evidence to establish the facts of the present case on hand and proved them that the complainant is entitled to the reliefs as mentioned in point no.3.  These two points are held in favour of the complainant and against the opposite party, accordingly. 

 

POINT NO.3:   In the result, the complaint is allowed in part, ordering the opposite party to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards the expenses incurred to the complainant for re-operation, to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards his pain, suffering and mental agony suffered by him and also awarding Rs.3,000/- (Rupees three thousand only)  towards the costs of this complaint, within one month from the date of the  receipt of the order.

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 31st day of December, 2015.    

          

                   Sd/-                                                                     Sd/-                                                           

              MEMBER                                                         PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

04-06-2015

:

Shaik Anees Ahamad, S/o.Basheer Ahamad, Muslim, aged about 40 years, residing at Rithwik Enclave, Near Electricity Office, Nellore City.

 

WITNESSES EXAMINED FOR OPPOSITE PARTY:

 

RW1

19-1-2015

:

C.Vijaya Saradhi, S/o.Ramanujacharyulu, Hindu, aged about 60 years, Doctor, Balaji Emergency Surgery Trauma Hospital, D.No.16-2-149, K

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	29-6-2012	:	Photostat copy of summary record of the opposite party in respect of the complainant’s date of joining and date of discharge for treatment in opposite party’s hospital.
Ex.A2	05-12-2012	:	Photostat copy of report of the opposite party to the complainant.
Ex.A3	24-12-2012	:	Photostat copy of report of Ortho unit of Stanley hospital, Chennai.
Ex.A4	18-01-2013	:	Photostat copy of report of Dr.Madhu Krishna Reddy Dandolu of DBR, Sk.Super Speciality, Tirupati-Department of Orthopedic.
Ex.A5     Ex.A6	25-02-2013     -	:     :	Photostat copy of lawyer notice got issued by the advocate for complainant to the opposite party.   Reply notice of the opposite party to the complainant.

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

Ex.B1	02-07-2012	:	Photostat copy of cash receipt for Rs.2,650/-.
Ex.B2	10-01-2011	:	Photostat copy of GMP Certificate about quality of Orthopedic inplates used.

 

           Id/-                                                                                                   PRESIDENT(FAC)

 

Copies to:

 

1. Sri Iqbal, Advocate, Nellore.
2. Sri R.Rajasekhar, Advocate, Tekkemitta, Nellore.

 

          

Date when order copies are issued: