KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL NO .02/08 JUDGMENT DATED: 12.11.2009 Appeal filed against the order passed by CDRF, Kottayam in OP.51/05 PRESENT SRI.M.K.ABDULLA SONA : MEMBER Sunu (minor) aged 14 years, : APPELLANT Vallikunnel(11) Velliyamattom.P.O., Thodupuzha, Rep. by her mother and next friend Sheela D/o Balakrishnan , Vallikunnel House, Velliyamattom.P.O., Thodupuzha, (By Adv.S.Vijayakumaran) Vs. 1. Dr.Joseph Ambrayil, : RESPONDENT Physician, Janatha Hospital, Erattupetta Road, Pala, Kottayam. (By Adv.Sajeevu Mathew) 2. The Director, -do-do- (By Adv.Mahesh.N.G) JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by CDRF, Kottayam in the file of OP.51/05 dated 16.12.05. 2. The brief of the case is that the complainant is the guardian of minor daughter named Sunu aged 12 years. Sunumol was taken to the 2nd opposite party hospital on 23.11.2000 with complaints of headache and fever. The 1st opposite party is the physician in the hospital. She was admitted in the hospital and the 1st opposite party prescribed certain medicines and injections. Due to injections of antibiotics and penicillin, SunUmol had developed urticaria an allergic skin eruption. This is commonly caused by injection of antibiotics such as penicillin or streptomycin. Due to the seriousness of the disease, the child was discharged on 24.11.2000. Thereafter she was taken to Carmel Medical Centre, Moonnani, Pala on the same day. She was treated there till 26th and was discharged. As the problem persisted, she was referred to ICH, Kottayam on 26.11.2000, where she was treated till 30.11.2000.But the treatment continued. Subsequently, as the symptoms appeared, she was admitted again in ICH, Kottayam on 20.4.04. It was diagnosed that the child had oedema which is abnormal infiltration of tissues with fluid. It is very serious cardiac disease because oedema of subcutaneous tissues will result in cardiac failure. On 20.4.04, petitioner came to know that disease of her daughter is incurable and she need lifelong treatment. This was caused due to the negligence, carelessness for treatment and deficiency in service on the part of the opposite parties. Hence this petition is filed for compensation for Rs.1,00,000/- and also for costs. 3. The opposite parties filed joint version contended that the petition is filed without any bonafide. There has been no negligence or deficiency in service as alleged. The complaint is hopelessly barred by limitation. According to the petitioner, the daughter was discharged from Janatha hospital on 24.11.2000 at her instance. Further, the mere evasive statement that the petitioner happened to know about the serious condition of her daughter on 20.4.04 cannot be presumed to have any proximate or remote connection with the treatment given to her at Janatha hospital on 23.11.2000. There is no proof for the continuation of illness during the large gap of 3 ½ years in between the discharge from the second opposite party hospital and treatment at ICH from 20.4.04. The opposite party strongly contended in their version that the child needs life long treatment is not at all correct. The treatment records at ICH does not show any evidence of cardiac disease. On the other hand, it mentions history of allergy to eggs and meet for the patient. The allegation that there has been negligence, carelessness and deficiency in service on the side of the opposite parties is made with motive of undue advantage. According to the 1st opposite party made a proper diagnose of the disease and prescribed standard medicines and followed treatment as expected from a well qualified and reasonable medical practitioner. The patient admitted in the 1st opposite party hospital for treatment for the diagnosed condition of urticaria which is a manifestation of allergy and acute diarrhea . The treatment given was for the diagnosed condition. The amount claimed by the petitioner is highly exaggerated. As there is no negligence or deficiency on the part of the opposite parties they have prayed for dismissed the petition. 4. The Forum below normally framed three important points arised for the consideration and they are whether there was any negligence in the treatment of minor Sunu at the 2nd opposite party hospital? 2nd, whether there was any deficiency in service on the part of the opposite parties and third reliefs and costs? 5. The evidence consists of the affidavit filed by the petitioner the 1st opposite party, oral evidence of DW1 and marked Ext.A1 to A9 for the complainant and Exts.B1 and B2 by the opposite parties. The Forum below analysed the entire evidence adduced by both sides and found that there is no evidence to prove that the 1st opposite party was negligent in treating the petitioner at the 2nd opposite party hospital or that any cardiac problems developed subsequently, as a result of the treatment. As such no negligence or deficiency in service can be found against the opposite parties. In other words the Forum below dismissed the petition in the absence of any positive evidence from the part of the complainant. The complainant prefers this appeal from the above impugned order passed by the forum below. On this day this appeal came before this Commission for final hearing the appellants and respondents appeared through their counsels. The counsel for the appellants vehemently argued on the grounds of appeal memorandum that it is a fit case to remand back to the Forum below for the fresh disposal after giving proper opportunities to the appellant to adduce their evidence. Appellant produced a document before the Forum below and the counsel for the appellant submitted that this document is highly necessary to marked as a exhibit to fill up the gap of quantum of limitation. He also submitted that it is a very sympathetic case and complainant is a very poor unfortunate lady and nobody to look after her and her daughter. He argued that due to the negligence, carelessness of the opposite parties the poor child is having very difficult to pull on her day today life. The counsel for the respondent strongly opposed the prayer for remanding the case back to the Forum below for the fresh disposal. This Commission heard in detail both sides and perused the entire records. This Commission perused the documents produced by the appellants in the appeal stage that is a requisition for investigation issued to Sunumol IP.No.8536/2000. This piece of paper is not having any proper date or any signature etc. This Commission cannot understand that why the appellant and her counsel suppressed this material documents before the Forum below and it cannot be understand that, on the strength of this document how this case will be sent to the Forum below for fresh trial. There is no meaning to sent back this case for fresh disposal to the Forum below again. It is very old case it is seen that the Forum below given all opportunities to the complainant to adduce their evidence. It is also seeing that there is no single step taken by the appellant/complainant to examine any expert witnesses including the professor of Pediatric medicine and any other doctor who finally treated the child. In the case bundle it seen a questionnaire prepared and submitted to the Forum below about the treatments of the opposite parties by an expert doctor. In her question and answer it is very clearly established that no carelessness or negligence in the part of the treatment of the said doctors. In the strength of the recent decision of the Supreme Court, the consumer Forums and Commissions are not an experts to say anything about the medical science. This Commission is having so sympathy towards the poor child and her mother(complainant). As per law Commission expected to dispose the cases only on accordance with the provisions of law and evidence. This Commission is not seeing any reason to interfere in the order passed by the Forum below and there is no purpose to remitted back this case to the Forum below again. It is nothing but abuse the process of justice. This Commission is expressing the helplessness. Evidence is the only criteria to settle a dispute as per the act. In this case there is no single piece of evidence favourable to the claim of the complainant. There was no denayal of opportunity to the appellant by the Forum below. In the result this appeal is dismissed and confirmed the order passed by the Forum below. Both parties are directed to suffer their own respective costs. The points of this appeal answered accordingly. SRI.M.K.ABDULLA SONA : MEMBER ps
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SRI.M.K.ABDULLA SONA | | 
