Date : 05/10/2012. Per Mr.K.B.Gawali, Hon`ble Member. 1. This appeal is preferred by Shri.Bansilal Bhila Choudhary, who is the original complainant, against the judgment and order dated 31.01.2007 passed by Dist.Forum,Dhule in C.C.No.118/2004, by which complaint came to be rejected. Respondent No.1 & 2 are the original opponents. 2. The case of the appellant/complainant in brief is that he is an employee of Police Department. That, father of opponent No.1 namely Dr.S.G.Agrawal was his family doctor. That, he had an incessant pain in his right leg since about 8 years and he used to take treatment from Dr.S.G.Agrawal. However, there was no permanent relief. That his aforesaid family doctor had suggested him for undergoing operation through his son i.e. respondent No.1 who had just passed out his medical examination. Accordingly, his operation of said leg was performed by respondent No.1 in the hospital of respondent No.2 on 9.5.2002 and had paid total charges of Rs.50,000/- towards the operation and post operation medicines. 3. It was further contended by the appellant that respondent No.1 & 2 had assured him that after two months he could be in a position to walk in a better way. However, even after five months from the date of operation he was required the help of walker to walk and pains in his said leg were also aggravated. It was also contended that when he visited respondent No.1 & 2 with all his above said complaints, no treatment was given to him except stating that after some days he would be in a position to walk without any trouble. 4. It was however averred by him that even after passing of one year there was no progress and rather the pain in the leg was being increased day by day. That he had therefore approached to an expert Orthopaedist Dr.Sancheti at Pune and was admitted on 21.6.2003. That, Dr.Sancheti on 24.6.2003 when started his operation of the said leg it was noticed that there was a pus caused due to incorrect fixing of steel plate by respondent No.1 & 2 during his earlier operation dated 9.1.2005. The appellant therefore averred that due to said pus his operation was postponed by Dr.Sancheti and cleared pus by taking out the steel plates, for which he had to spend Rs.34,691/-. He further submitted that, as per the advise of Dr.Sancheti, he had to take bed rest for four months and then his operation by way of “Total Hip Replacement” i.e. T.H.R. was carried out by Dr.Sancheti on 4.11.2003 after having taken different pathological test and was discharged on 26.11.2003 in which he had again to incur total expenditure of Rs.3,70,000/-. 5. Thus, the appellant/complainant alleging that respondent No.1 & 2, to have committed negligence in providing medical service to him causing financial loss as well as mental and physical harassment, filed complaint in the Dist.Forum seeking direction to respondent No.1 & 2 to pay him compensation of Rs.2,50,000/- with interest @ 18% from 4.11.2003 till realisation of entire amount, Rs.50,000/- with interest @ 18% p.a. from 9.5.2002 onwards, Rs.10,000/- towards expenses incurred on travelling to Mumbai & Pune and Rs.10,000/- towards the cost of the complainant. 6. Both the respondent No.1 & 2 appeared before the Forum and denied the allegations made against them by the appellant/complainant. Respondent No.1 submitted that he himself and respondent No.2 are Orthopaedist. That, in the month of May 2002 after examining appellant`s affected leg by way of X-ray and M.R.I. report which the appellant had taken earlier, it was diagnosed that he was suffering from the disease of “Avascular Necrosis with Arthritis” which means that due to the insufficient supply of blood cells in hip joints were weaken and dead. That, for treating the said disease the commonly accepted surgical treatments are; I) “Pelvic Support Osteotomy” II) Total Hip Replacement etc. That, the appellant/complainant was given detail information about the merit /demerit of both the above said methods of the treatment and which was only then the appellant preferred the surgical method of “Pelvic Support Osteotomy”. Accordingly by using this method of infected portion of the said hip joint was removed and an aseptic (sterile) steel plate was fixed therein. That, said operation was successful and he had rejoined his duty in the Police Department after having fitness certificate by Civil Surgeon, Dhule. Thus it was contended that allegations about any medical negligence on the part of himself and respondent No.2 was false and baseless. Hence, his complaint be dismissed. 7. Respondent No.2 also appeared before the Forum and denied in toto all the allegations including negligence in performing the operation. It was submitted by him that complainant had long standing disease of hip joint. He had taken treatment from various doctors along with the father of respondent No.1. That, the operation of hip joint was performed by respondent No.1 and he assisted him. The other submissions are more or less same as made by respondent No.1 in his written version and hence, they are not repeated here. Thus both the respondents No.1 & 2 contended that they are not at all responsible for the formation of pus said to have been developed in the said joint after about a period of one year and hence requested to dismiss the complaint as the same was false and baseless. 8. District Forum on the basis of available material and hearing the parties, dismissed the complaint by way of it`s impugned judgment and order, by holding that there was no medical negligence on the part of respondent No.1 & 2 as alleged by the complainant. 9. Aggrieved and dissatisfied with the impugned judgment and order the present appeal is preferred in this Commission by the complainant. 10. Notices were served on both the respondents. Appeal was finally heard on 4.9.2012. Adv.Shri.C.D.Bhadane was present for appellant whereas Adv.Shri.G.V.Gujrathi was present for respondent No.1 & 2. We heard both the counsels at length and appeal was reserved for impugned judgment and order. 11. Learned counsel Shri.Bhadane submitted that both respondents No.1 & 2 had acted negligently in performing operation and fixing steel plate inside the joint. Therefore appellant/complainant even after operation was not relieved from pain in his said leg and was also not in a position to walk without the help of walker. It was further contended that due to wrong fixing of steel plate there was formation of pus in the operated joint and therefore appellant had to get treatment from Dr.Sancheti, an Orthopaedist from Pune who had to first clear the pus and after making appellant rest for four months his second operation of total hip replacement was performed. This caused a considerable financial loss as well as mental harassment to the appellant. Learned counsel further submitted that as per the affidavit given by Dr.Ashish Ravindra Singh from Sancheti Hospital, there was pus at the place of joint where steel plate was fitted by respondents. He therefore contended that respondents were negligent and committed deficiency in service as provided by them by way of operation on appellant which necessiated the second operation at Dr.Sancheti`s Hospital. He also contended that respondent No.1 did not remain present for cross examination and hence negative inference can be drawn. He thus contended that both respondents No.1 & 2 are liable to pay compensation as claimed. However Dist.Forum without considering record available has erred in dismissing the complaint. 12. On the other hand, learned counsel Shri.Gujrathi submitted that the surgery by way of “Pelvic Support Osteotomy” is one of the commonly used and accepted methods which was opted by the respondents in respect of operation of appellant/complainant. He further submitted that after about five months of the said operation performed on 9.1.2005 the appellant was found fit to join his duty of Assistant Police Sub Inspector in Police Department. This fact is admitted by appellant in his statement which was recorded in the Forum. He pointed out that the appellant in his statement has admitted to have given fitness certificate dated 16.10.2002 by the Civil Surgeon, Civil Hospital, Dhule. Learned counsel Shri.Gujrathi therefore contended that operation performed by respondents was quite proper and successful. He further contended that the submission given by Dr.Ashish Singh, from the hospital of Dr.Sancheti, is nothing but hearsay which is admitted by himself as he was not in service with the said hospital during the relevant period. The learned counsel further averred that the respondents cannot be held responsible for the alleged formation of pus after one year of the date of operation. He further contended that since respondent No.1 had been in the foreign country for his further education and therefore he could not remain present for the cross examination and hence no adverse inference can be drawn. That, he contended that the appellant has not proved any negligent act on the part of respondents which has been rightly been concluded by Dist.Forum and dismissed the complaint by way of impugned judgment and order which be confirmed by dismissing the appeal. In support of his above contention learned counsel for the respondent relied on following case laws. i) V.Kishan Rao –Vs- Nikhil Super Speciality Hospital & Anr. reported in III(2010) CPJ 1 (SC), in which the Hon`ble Apex Court has held that “doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art”. ii) “Kusum Sharma and others –Vs- Batra Hospital and Medical Research Centre and others”, reported in (2010) 3 Supreme Court Cases 480, in which it is held by Hon`ble Apex Court that “the negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence”. iii) Smt.Sajini, Major –Vs- Chaya Nursing Home & Ors.” reported in 2012(1) CPR 111(NC). 13. We have carefully gone through the available material before us and have also taken note of oral submissions as put forth by learned counsels of both the parties. The major two points for our consideration and decision are, whether appellant/complainant has proved medical negligence on the part of respondent No.1 & 2 and, whether the impugned judgment and order passed by Dist.Forum needs our intervention. 14. From the perusal of the complaint of the appellant as filed before Dist.Forum, it appears that allegations of medical negligence is based on the ground that even after having performed the surgery of “Pelvic Support Osteotomy” on 9.1.2005 by the respondent, appellant`s pains in the said hip joint is not alleviated and that he was not able to walk without support of walker even after the period of 5 to 6 months and moreover there was a formation of pus in the area of operation which was detected by Dr.Sancheti. 15. It has come on record that appellant/complainant was suffering from disease of “Avascular Necrosis with Arthritis”, it means there was short supply of blood to the hip joint which resulted into damage of cells. To treat this disease there are four commonly accepted methods as also deposed so by Dr.Ashish Singh in his statement. These methods are ; i) Total Hip Replacement, ii) Pelvic Support Osteotomy, iii) Excision Arthroplasty alone, iv) Arthrodesis of Hip. When appellant had approached with respondent No.1 & 2 he was given entire information about these methods, out of which, he chose the method of “Pelvic Support Osteotomy”. Therefore respondent No.1 & 2 cannot be blamed to have selected this method of surgery of the appellant. In this method of surgery, infected portion of the hip joint is removed and steel plate is fixed as is revealed from the available record. In the citation given at serial No.1 above the Hon`ble Apex Court has held that “doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art”. Considering this ratio the respondent cannot be held liable for choosing the method of “Pelvic Support Osteotomy” for the surgery of the appellant as it is one of the commonly accepted methods. 16. Now the contention of appellant that the pain in his leg was continued even after operation as carried out by respondents and that he was in a position to walk without support, cannot be accepted for two reasons. i) There is no record to show that for the above said post operative complications he had ever consulted the respondent doctors and ii) The Civil Surgeon, Dhule had given fitness certificate dated 16.10.2002 after period of 5 months from the date of operation i.e. 9.5.2002, which is admitted by the appellant himself if his submission. It has also come on record that after having obtained this certificate appellant has joined his duty on the post of Assistant Sub-Inspector in Police Department. 17. Another allegations of the respondents are that pus was formed in the said portion of joint which was noticed by him on 23.6.2003 i.e. after one year of the date of operation, when he had been to Dr.Sancheti Hospital at Pune. It cannot therefore be concluded that this pus formation was due to negligent act committed by respondent at the time of operation. First is the time long i.e. one year from the date of operation the pus was detected as alleged which cannot have any direct connection with the said operation. Therefore only because there was pus, an inference cannot be drawn that the operation and fixation of steel plate was not done properly by respondents. Dr.Ashish Singh has stated in his cross examination that the pus formation at operation place can be formed due to infection even after the successful operation. In such a situation their allegations about negligence against respondents cannot be accepted. As regards the absence of respondent No.1 for the cross examination no adverse inference can be drawn as he was unable to attend the Dist.Forum being outside the country. 18. In the above said citation at serial No.2 as relied on by learned counsel for the respondent the definition of term “negligence” is dealt with by Hon`ble Supreme Court. The definition given reads as “negligence is a breach of duty exercised by omission to do something which reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”. Thus considering this defence appellant has neither proved any omission of the act which respondents were supposed to do and also any commission of acts which was not supposed to be performed by respondents. As mentioned above the method adopted by the respondent doctors in performing operation, is one of the commonly used methods in which steel plates are normally fixed. 19. In view of the aforesaid facts and observations we do not find any substance in the appeal filed by appellant/complainant, as the negligence has not been proved against respondent. District Forum has rightly concluded as there was no negligence on the part of respondent and has rightly dismissed the complaint. We therefore pass the following order. O R D E R 1. Appeal is dismissed. 2. No order as to cost. 3. Copies of the judgment be issued to both the parties. Pronounced on 05/10/2012. | 
