Karnataka

Kolar

CC/20/2016

Sri.M.Gangappa - Complainant(s)

Versus

Dr.R.R.Prakash - Opp.Party(s)

Sri.k.Narendra Babu

14 Nov 2016

ORDER

Date of Filing: 20/04/2016

Date of Order: 14/11/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 14^th DAY OF NOVEMBER 2016

PRESENT

SMT. PRATHIBHA.R.K., BAL LLM, PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB…..    MEMBER

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 20 OF 2016

Sri. M. Gangappa,

S/o. Munivenkatappa,

Aged About 43 Years,

Sangasandra Village,

Duggasandra Hobli,

Mulbagal Taluk,

Kolar District.

 

(Rep. by Sri. K.Narendra Babu, Advocate)                              ….  Complainant.

 

- V/s -

Dr. R.R. Prakash,

Doctor & Proprietor,

Prakash Nursing Home,

Bazaar Road, Mulbagal-563 131.

Kolar District.

(Rep. by Sri. K.V.Shankarappa, Advocate)                    …. Opposite Party.

-: ORDER:-

 

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant has preferred this complaint Under Section 12 of the Consumer Protection Act, 1986 has sought relief of Rs.20,00,000/- which is inclusive of expenses spent towards treatment of left leg of his child Harshitha, by way of compensation alleging medical negligence against OP and any other reliefs as the Forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, on 09.07.2011 at 05.00 PM, his wife Smt.D.M.Anjinamma took her 06 years old daughter S.G.Harshitha to OP clinic because of fever.  At that time the doctor as well as the owner of Prakash Clinic Dr.R.R. Prakash had administered a injection to left waste of her child S.G. Harshitha.  Immediately, the said child lossed consciousness.  When the same was brought to the notice of OP, the OP-Doctor examined the child and said that, it is only the effect of injection, it will get right for a while and advised to go home by receiving Rs.100/- as his fees and also prescribed tablets and when she purchased the tablets, OP suggested the way of taking tablets and forcibly sent from his clinic.

 

(b)    It is also contended that, half an hour later even though the said child regained consciousness, her left leg was not in action.  Immediately she approached OP, he said nothing to worry it will be set right within 2-3 days and thereafter OP sent her forcibly from his clinic.

 

(c)    It is also contended that, on 11.07.2011 the complainant took his said child to OP clinic as the child has not regained action in left leg.  After examining the child OP advised to take prescribed syrup for 04 days.  Again he visited OP on 15.07.2011 as the same problem continued.  As advised by OP again visited on 23.07.2011, OP advised to take the above prescribed tablets and syrup for 15 days, but at last the child did not regained action in her left leg.

 

(d)    On 08.08.2011, the complainant took his said child to Manipal Institute Of Neurological disorders, Bangalore.  At this Hospital Dr. Tharanath Shetty after investigation opined as it is sciatic nerve injury, maximal effect seen in the left peroneal nerve and advised to wear ankle brace and opined that while giving injection to the child Harshitha on 09.07.2011, due to fall of injection to sciatic nerve, left leg lossed action.  For this, one month, by giving electric shock treatment, progress should be observe.  At least 03 months the patient to be admitted for treatment, but not sure about regaining of action in left leg.  And also given electric stimulation in physiotherapy, passive exercise in, exercise therapy and active exercise.  On 16.08.2011 advised nervigin tablets to be continued for 03 months.

 

(e)    It is further contended that, on 09.10.2014 he visited Vaidehi Institute of medical sciences and research centre, Bangalore.  The doctors of the said hospital also opined as there is sciatic nerve injury and not sure of regaining action in left leg of the said child.

 

(f)     Thereafter on 15.10.2014 he went to Tirupathi Tirumala Balaji Institute of Surgery Rehabilitation and Research for disabled.  And there conducted operation.  Even after following treatment up to 05.12.2014 which is also of no use.  And also given Nativaidya, physiotherapy and so many other treatments also the said child did not regained action in her left leg.  So on 25.12.2015 approached OP at his hospital and appraised him as he is responsible for the situation and directed him to set right the same.  For which OP asked to come on 18.03.2016, as the doctor from abroad will visit the hospital.  When visit on 18.03.2016 OP told to come on 27.03.2016.  When visit on 27.03.2016 at 2.00 PM OP demanded Rs.5,00,000/- to bring foreign doctor, for which he and his wife were disgusted and threatened to do Dharana.  For which OP threatened as he will call the police saying that, the money make everything and later forcibly sent out.

 

(g)    It is contended that, on 27.03.2016 at 2.30 PM he lodged a complaint against OP to PSI Mulbagal, but they have not taken any action.  So on 28.03.2016 lodged complaint against OP to Superintendent of Police of Kolar District. 

 

(h)    It is contended that, on 30.03.2016 he got issued notice to OP, there could be no reply even though it was duly served on OP on 31.03.2016.  In not replying of notice also OP committed negligence.

 

(i)     It is further contended that,

(1) Due to administration of injection, left leg of Harshitha, has been paralyzed.

(2) Injection needle, syringe is un-sterilized.

(3) Proportion of injection given is higher proportionate.

(4) Injection shall not be injected to waste of children, if there is a need only vaccine to be administered, even though injection is administered.

(5) with knowledge as, there may be a resistance by the children while administering injection, chances of causing injury to the nerve, even though OP had administered injection.

(6) OP had given injection to sciatic nerve in left waste of Harshitha, so she lossed sensation in her left leg.

 

(j)     It is further contended that, so, only OP had made party in this case.  Since Harshitha is minor, on behalf of her, being a father complainant filed this complaint.  And he spent a sum of Rs.5,45,000/- towards the treatment of the said child.  So, contending, the complainant has come up with this complaint on hand to seek the above set-out reliefs.

 

03.   The OP has resisted the claim of the complainant in toto by refuting allegations made in the complaint by para-wise.  Further contending that, the mother of the child took the child Arpitha to OP’s clinic on 09.07.2011 and on 11.07.2011 with a complaint of fever, after examining, he prescribed for tablets on first date and syrup on the second date to improve general strength and health, the said prescription is only for fever and to improve general health condition, and specifically contended as he never prescribed for injection nor administered the injection.

 

(a)    And also submits that, he is a reputed Medical Practitioner of more than 45 years in the medical field.

 

(b)    And also submits that, the complaint is barred by limitation Under Section 24(A) of the Consumer Protection Act.  So contending, dismissal of the complaint with costs has been sought.

 

04.   The complainant has submitted the below mentioned documents in different dates of proceedings and also submitted below mentioned citations:-

(i) Copy of the Notice

(ii) Postal Acknowledgement

(iii) Prescription given by OP.

(iv) Documents pertaining to Manipal Hospital.

(v) Copy of endorsement Letter dated: 13.04.2016 issued by Circle Inspector of Police, Mulbagal Circle.

(vi) Copies of Two Prescriptions issued by Vydehi Hospital, Bangalore.

(vii) Copies of two out-patient case records dated: 09.10.2014 issued by Vydehi Institute of Medical Sciences & Research Centre Hospital, Bangalore.

(viii) Medical record issued by Manipal Hospital, Bangalore.

Prescription issued by Manipal Hospital.

(ix) Therapy requisition form dated: 08.08.2011 with medical bills issued by Department of Physical Medicine of Manipal Hospital, Bangalore.

(x) Prescription dated: 08.08.2011 issued by Manipal Hospital, Bangalore.

(xi) Copy of Medical certificate dated: 17.10.2014 issued by Director, Balaji Institute of Surgery Rehabilitation & Research for disabled TTD, Thirupathi.

(xii) Out-patient card dated: 15.10.2014 issued by Balaji Institute of Surgery Rehabilitation & Research for disabled TTD, Thirupathi.

(xiii) Follow-up card issued by the Balaji Institute of Surgery Rehabilitation & Research for disabled TTD, Thirupathi.

(xiv) Out-patient card dated: 05.12.2014 issued by the Balaji Institute of Surgery Rehabilitation & Research for disabled TTD, Thirupathi.

(xv) Call letters dated: 20.02.2015 & 05.12.2014 issued by ALFC, TTD, Thirupathi.

(xvi) Copy of granting order letter dated: 02.11.2015 issued by Deputy Thasildhar, Dhuggasandra Hobli, Mulbagal Taluk.

(xvii) One Photograph of complainant’s daughter Harshita

 (xviii) AIR 2010 SC 1162

(xix) AIR 1996 SC 550

(xx) AIR 1998 SC 1801

(xxi) AIR 1969 SC 128

(xxii) Reply to notice issued by OP

(xxiii) Document pertaining to Manipal Hospital

(xxiv) Complaint given to S.P., Kolar.

(xxv) Complaint given to S.I. Mulbagal.

(xxvi) Envelop cover pertaining to reply notice sent by the OP.

(xxvii) AIR 1969 SC 128

(xxviii) (2009) 3 cpj 107

(xxix) (1999) 2 CPC 1269

(xxx) AIR 2004 SC 5088

(xxxi) (2005) 2 CLT 345

(xxxii) (1998) 1 CPJ 476

(xxxiii) (1997) 1 CLT 452

 

05.   The very complainant also got himself examined as PW-1 and Exhibits-P.1 to P.21 came to be marked and received in evidence and also cross-examined by the learned counsel appeared for OP.

 

06.   The very OP got cross-examined by way of submitting reply affidavit to the suggestive questionaries submitted by complainant’s counsel.

 

07.   The OP has submitted the below mentioned documents, medical literature and citations:-

(i) Copy of Karnataka Medical Council

(ii) Copy of the Calcium acetate medical facts from Drugs.com

(iii) Copy of Cefixime: Indications, Side effects, warnings from Drugs.com

(iv) Copy of Azithromycin unes, Dosage & Side Effects from Drugs.com

(v) AIR 2009 SC 2210

(vi) AIR 2011 SC 489

(vii) AIR 2010 SC 1050

(viii) Copy of Certificate of Registration issued by KPMEA.

(ix) Copy of certificate issued by Bangalore University.

(x) Certificate of Registration issued by KMC

 

08.   The learned counsel appearing for complainant as well as the OP have submitted written arguments.

 

09.   Heard the oral arguments as advanced by the learned counsel appearing for the complainant and that of the learned counsel appearing for the OP.

 

10.   Therefore the points that do arise for our consideration in this case are:-

(A) Whether the OP could be held deficient in his medical service as contended by the complainant?

(B) If so, to what relief the complainant is entitled to?

(C) What order?

 

11.   Findings of this District Forum on the above stated points are:-

POINT (A) & (B):- In the Negative

POINT (C):-  As per the final order

for the following:-

 

REASONS

POINT (A) & (B):-

12.   To avoid repetition in reasoning and as these points do warrant common course of discussion the same are taken up for consideration at a time.

 

(a)    It is a definite case of the complainant that, his wife Smt.D.M.Anjinamma had taken the said female child – Harshitha to OP clinic at Mulbagal with a complaint of fever on 09.07.2011 and the OP – Doctor had administered injection, which resulted in permanent disability of the left leg of the said child.

 

(b)    For the time being suffice to observe that against the consideration such medical services were rendered and even when the said child is suffered permanent disability, the complainant being a father of the said child would become consumer and certainly he can submit a complaint with regard to contended medical negligence.  Why for that even the mother of the said child by name Smt. Anjinamma (reliance placed on Para-2 of complaint) could also be the complainant.  However non-joining of the wife of the complainant would lose its significance for the reasons to be stated hereafter.

 

(c)         It is worth to note that, the Exhibit. P-3 Prescription was in the name of “Arpitha”.  Even the OP in its version submits that, he had given prescription for tablet and syrup to child ‘Arpitha’.  But the complaint and other ­related documents stand in the name of “Harshitha”, this logic of complainant is suspicious and cannot be believable, whether the ‘Arpitha’ and ‘Harshitha’ one and the same child or different, would be the question?

 

(d)    Though there could be conflicting version with regard to when exactly the said child was taken to OP and also with regard to expenditure spent towards treatment.  In Para-2 of the complaint pleaded as, on 09.07.2011 his wife Smt.D.M. Anjinamma had took the said child to OP clinic.  On this day prescribed tablets.  Again on 11.07.2011 OP had prescribed syrup.  Contrary to this, the very complainant had sworn in para-2 of his affidavit evidence as the said child was taken first time on 11.07.2011 to OP and on this day OP had prescribed tablet and syrup.

 

(e)    In Para-4 of the complaint pleaded as the frequent visits to OP on 15.07.2011, 23.07.2011 but the same was not sworn in his affidavit.

 

(f)     In Para-11 of complaint, the complainant stated as he had spent a sum of Rs.5,45,000/- towards treatment for the said child and contrary to this in legal notice dated: 30.03.2016 it is stated as the complainant had spent a sum of Rs.6,18,000/- towards treatment of the said child and a sum of Rs.58,000/- which is yet to spell out towards what was spent.

 

(g)    We are unable to understand the logic of contradictory versions of the complainant to forego unmindfully.  As per legal notice the amount spent is of Rs.6,18,000/- and another is of Rs.58,000/- in total it would comes to a sum of Rs.6,76,000/-.

 

(h)    If it is true, the complainant should be very meticulous and he should explain as to why he reduced the said expenses for a sum of Rs.5,45,000/- as pleaded in Para-11 of the complaint.  And moreover there is no pleading of this Rs.58,000/- in complaint nor in his affidavit at all, unmindfully sought for compensation of Rs.20,00,000/-.

 

(i)     The needful documentary evidence is required to ascertain which version of the complainant is truthful.  The cause for reducing the expenses if at all true is bound to be proved.  In conclusion we affirm and re-affirm that, we are unable to understand and believe the logic of the complainant without documentary evidence.  Hence this case loss its significance.

 

(j)     In any way the claim for compensation through the very present complainant itself against OP is also with intermingled causes for, if we are to summarize the allegations, the present complainant desires to level against this OP, (reliance placed on Para-10 of the complaint).

(i) Injection needle, syringe is un-sterilized.

(ii) Proportion of injection given is higher proportionated.

(iii) Injection shall not be injected to waste of children, if there is a need only vaccine to be administered.

 

As in complaint given to PSI, Mulbagal, sought for to take action against staff of the OP clinic also (reliance on complaint dated: 27.03.2016) it requires voluminous evidence and enquiry to decide the aforesaid allegations.  We lack jurisdiction to probe in to it.  Moreover this aspect of the complainant had not proved with any evidence with regard to the staff, the complainant yet to spell out.  Hence we cannot hold the OP as he rendered deficient in service only based on self-versions of complainant itself.

 

(k)    Therefore the said self contradictory pleadings would make it clear that, here is the complainant who has not come before us with clean hands through this complaint.

 

(l)     As per Exhibit-P.5 dated: 13.04.2016, the endorsement issued by PSI, Mulbagal, with regard to the complaint given by this complainant, which summarized as, the said child approached to OP on 11.07.2011 and the treatment of OP caused ‘POLIO’ to the left leg of the said child.

 

(m)   Further the complainant contends as the said child is permanently disabled and lossed her left leg sensation completely, but Exhibit-P.20 reveals that, there is 50% of disability in movement of the left leg of the said child.  And Vaidehi Hospital Clinical history reveals that the child can walk.  So, this is a serious issue for the complainant to come with needful documentary evidence.  So we are of the definite opinion that, to ascertain the true cause, the complainant would have to be made necessary parties of whom he had consulted in all the hospitals as pleaded. 

 

(n)    As per complainant they went to Manipal Institute on 08.08.2011.  Dr. Tharanathshetty diagnosed it as ‘sciatic nerve injury etc.,.  If at all this happened due to treatment given by OP, what prevented the complainant to approach OP immediately or to complaint to KMC or to concerned police.  Why delayed up to 2016.  This act is suspicious and cannot be believable.  What prevented this complainant to come up with the evidence of expert doctor who had given such opinion as the said cause is due to OP treatment would be the question?  Hence this complainant is bad for non-joinder of necessary parties.

(o)    As per the medical literature submitted by this OP, it is clear that, even by using of the said tablet and syrup prescribed by him will not cause the said problem of the child.

 

(p)    On 27.03.2016 at 2.30 PM he had lodged compliant to PSI, Mulbagal.  The very next day on 28.03.2016 he lodged complaint against OP to S.P., Kolar, as the PSI, Mulbagal has not taken any action.  This act of complainant is very surprise to us because without giving breathing time to PSI, Mulbagal to investigate, within a half day what action it should take?  The very next day approached S.P., Kolar, we are not restricting him to approach, he has got very right to do so, but why the complainant had not shown such urgency and immediate approach to OP or concerned Police or KMC (Karnataka Medical Council) when the child caused such a problem, what prevented him to delay 05 years, if at all Dr. Tharanath Shetty had given opinion.  So, moreover no-where in the report of Dr. Tharanath Shetty mentioned about the said cause is due to injection fall.  There is delay of 05 years in giving complaint to concerned PSI and also delay of 05 years from the date of treatment in approaching to OP finally as alleged and also delay of 05 years in filing of this complaint too.  Why such inordinate delay is there?  Therefore the version of the complainant is unbelievable.  Therefore this complaint is barred by limitation as per Section 24(A) of the Consumer Protection Act, 1986.

 

(q)    Therefore all such versions when evaluated at a stretch it would be crystal clear that this child of complainant was thoroughly being examined by OP and was being instructed as the need arose.  Hence there is no deficient in service on the part of OP as alleged by the complainant.

 

(r)     Therefore self version of the complainant cannot be the proof of this fact that the OP Doctor was administered injection to the said child which leads to loss of sensation in left leg of the child.  This fact remained unproved on record because this fact neither finds place in the prescription (Exhibit-P.3) of OP, nor there is any such evidence to show the purchase of the injection and tablets and syrup are brought for the purpose of administer to the said child.

 

(s)    Once this is the specific contention it requires to be specifically proved and we cannot imagine the link to come to the conclusion that cause of the said unlucky child was on account of contended negligence on the part of OP.  So, this complainant has failed to prove the contended negligence against the OP. 

 

(t)     The citations relied by the learned counsel for complainant, since not applicable to the facts of the case on hand the same are not necessary for taking into consideration. 

 

POINT (C):

09.   We proceed to pass the following:-

ORDER

01.   For foregoing reasons the present complaint stands Dismissed with a direction to both parties to bear their own costs.

 

02.   Send a copy of this order to both parties free of cost

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 14^th DAY OF NOVEMBER 2016)

 

 

 

 

LADY MEMBER                MEMBER                    PRESIDENT

         

 

 

 

 

ANNEXURES

LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF COMPLAINANT:-

 

1) PW.1  ::            Sri. Gangappa.

 

3) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COMPLAINANT:-

 

Exhibit P.1 :-              Copy of the legal notice dt. 30.03.2016.

Exhibit P.2 :-             Copy of postal acknowledgement.

Exhibit P.3:-               Copy of prescription issued by OP.

Exhibit P.4:-               Copy of report dt.08.08.2011 issued by Manipal Institute of

Neurological Disorders, Bangalore.

Exhibit P.5:-               Copy of endorsement dt.13.04.2016 issued by Circle Inspector,

Mulbagal Circle.

Exhibits P.6 & P.7:-  Two prescriptions issued by Vydehi Hospital, Bangalore.

Exhibits P.8 & P.9:-  copies of two out-patient case records dt.09.10.2014 issued by

Vydehi Institute of Medical Sciences and Research Centre Hospital, Bangalore.

Exhibit P.10:-             Medical record of daughter “Harshitha” issued by Manipal

Hospital.

Exhibit P.11:-             Prescription issued by Manipal Hospital.

Exhibit P.12:-             Therapy requisition form dt.08.08.2011 along with medical bills

in four sheets issued by Department of Physical Medicine of

Manipal Hospital, Bangalore.

 

Exhibit P.13:-             Prescription dt.08.08.2011 issued by Manipal Hospital,

Bangalore.

 

Exhibit P.14:-             Copy of medical certificate dt.17.10.2014 issued by Director,

Balaji Institute of Surgery Rehabilitation and Research for the

disabled TTD, Thirupathi.

 

Exhibit P.15:-             Out-patient card dt.15.10.2014 issued by Balaji Institute of

Surgery Rehabilitation and Research for the disabled TTD,

Thirupathi.

 

Exhibit P.16:-             Follow-up card issued by the said hospital

 

Exhibit P.17:-             Out-patient card dt.05.12.2014 issued by the said hospital.

 

Exhibit P.18:-             Call letter dt.20.02.2015 issued by ALFC, TTD, Thirupathi.

 

Exhibit P.19:-             Similar letter dt.05.12.2014

 

Exhibit P.20:-             Copy of granting order letter dt.02.11.2015 issued by Deputy

Thasildhar, Dhuggasandra Hobli, Mulbagal Tq., in favour of

Harshita in two sheets.

 

Exhibit P.21:-             Photograph of Harshita.

 

 

 

 

LADY MEMBER               MEMBER                     PRESIDENT