DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> <br /> C.C.No.19 of 16.1.2007<br /> Decided on : 17.5.2007 <br /> <br /> Karandeep Singh S/o Sh. Gurjeet Singh S/o Sh. Pritam Singh, R/o Gali No. 6, Ajeet Road, Bathinda through his natural guardian and father Gurjeet Singh.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1.Gupta Hospital, Power House Road, Bathinda through its Partner/Proprietor/Managing Director.<br /> 2.Dr. Amrit Gupta of Gupta Hospital, Power House Road, Bathinda.<br /> 3.United India Insurance Co. Ltd., The Mall, Bathinda through its Branch Manager.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. H.L. Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. S.M. Goyal, counsel for opposite party No.1 & 2<br /> Sh. Sunder Gupta, counsel for opposite party No.3<br /> <br /> O R D E R.<br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant through his father and natural guardian Gurjeet Singh seeking direction from this Forum to the opposite parties to pay him Rs.50,000/- spent by him on medicines and fee of doctors of Dayanand Medical College & Hospital, Ludhiana; Rs.5,000/- paid in cash to opposite parties No. 1&2; Rs.4,00,000/- as compensation on account of mental tension, harassment and botheration, besides costs of the complaint.<br /> 2. Version of the complainant which emanates from the complaint itself culminating into the filing of this complaint may be stated as under :- <br /> Complainant is aged about five years and is studying in Saint Xavier Convent School, Bathinda. On 28.3.2006, he was playing in front of his house. Motorcycle hit his right femur which started causing severe pain. On the same day, his parents brought him to opposite party No.1, the Proprietor of which is opposite party No.2. Opposite party No.2 was already known to his parents and relatives. Opposite party No.2 got conducted X-ray and apprised that there was fracture of right femur. He further assured that treatment would be done in an accurate manner. He was admitted by opposite party No.2 in the hospital. A sum of Rs.5,000/- was paid as fee. Plaster was applied to the right femur. Complainant remained admitted in the hospital upto 31.3.2006. On 30.4.2006, Plaster was removed and he was feeling pain and was not able to walk. He had limping gait. On protest raised by his parents, opposite party No.2 told that limping would be alright with the passage of time. Some medicines were provided by opposite party No.2. Complainant was not feeling any relief even after the expiry of some days. His parents became worried and consulted Dr. Gurdev Singh, who conducted X-ray of the right femur of the complainant on 13.5.2006. He told that despite operation, fractured bone was not in order. He further made it known that surgery was again required. Opposite party No.2 was contacted for collecting medical/treatment record-cum- discharge card for getting further treatment. He refused to handover the bed head ticket. He further directed to get the surgery done from him. When he was forced by his parents and relatives to handover the treatment file, opposite party No.2 gave prescription slip only in which dates of admission and discharge were recorded. He refused to handover the remaining record which he was bound to give. Thereafter, he (complainant) was brought to DMC, Ludhiana. Doctors after examining him admitted him for further treatment. On investigation, doctors of DMC diagnosed that that there was two months old Malunited fracture shaft of femur proximal mid third junction right side. He remained admitted in DMC from 21.5.2006 to 31.5.2006. he was operated of ORIF of fracture with small DCP ( 6 H, 6s) (Narula) on 22.5.2006. Complainant alleges that due to negligence of opposite party No.2, he was forced to undergo unwanted surgery to set right bone of right femur and has undergone severe bodily pain. His parents came to know about the negligence on the part of opposite party No.2 when treating doctors of DMC were holding conversation. Negligence of opposite parties No. 1 & 2 is also proved from the record of DMC. X-ray is taken before and after surgery. Opposite party No.2 was negligent in giving the treatment. Due to the fact that plaster was wrongly applied, fracture could not unite. He could not attend the school for three months on account of which he has suffered loss in his study. He and his parents have suffered mental as well as physical pain and have undergone physical loss. <br /> 3. On being put to notice, opposite parties No.1 & 2 filed their version taking legal objections that complainant has no cause of action and locus-standi to file the complaint; it is not maintainable in the present form; complainant is not consumer; he is estopped from filing the complaint by his act and conduct; intricate questions of law and facts are involved which require to be proved by way of leading oral and documentary evidence which cannot be taken by this Forum in summary proceedings and complaint has been filed to harass and humiliate them and to extract money. He has not come with clean hands. On merits, they admit that complainant aged about four years was brought to the hospital of opposite party No.2 on 28.3.2006. X-ray of right femur was done. Parents of the complainant were never pressurised, forced or influenced to get treatment from them. No amount was deposited at the time of admission of the complainant. However, a sum of Rs.4,000/- was paid on the date of discharge of the complainant from the hospital i.e. 31.3.2006. This amount included charges of medicines and POP bandage etc. His relatives had made him aware that he was hit by a Motorcycle while he was playing in the street. There was no wound and skin was healthy. It was closed fracture of right femur. Line of treatment and prognosis were explained to his mother after clinically examining him and after X-ray. She had given consent for treatment. His right leg was put on skin traction on Thomas splint as per standard treatment in case of such a minor child. On 31.3.2006, after closed reduction under anesthesia, one and a half hip spica cast was given for four weeks. He was discharged on the same day. Thereafter, he came on 30.4.2006, when POP was removed and fresh X-ray was taken. It was found that fracture had united with some over-lapping. On examination, it was observed that there was shortening of right thigh by about less than 2 Cms. There was no angulation and no rotation deformity. His attendants were told that shortening of less than 2 Cms in such like case of the child of four years does not require any further treatment or intervention. It would stand automatically corrected with the passage of time. Due to the shortening, there would be some limping which would stand cured naturally and automatically. It is further added by them that in case of femur fracture in child having age of 2 to 10 years , there is strong tendency to exhibit overgrowth of 1 cm to 2.5 cms because of fracture hyperemia. As per medical science and theory, in this age group of children, hip spica cast is usual treatment. Remodelling and overgrowth of bone makes perfect reduction unnecessary. Natural shortening of 1 to 2.5 cms is covered in natural growth. Complainant was not brought to them after 30.4.2006. No surgery was required in this case. Discharge slip was given to his parents on 31.3.2006, copy of which has already been produced by him. They deny that opposite parties had refused to give record of the complainant or told that surgery would be repeated. When surgery was neither conducted nor required, the question of re-surgery did not arise. Diagnosis at DMC as per copy of the record was two months old malunited fracture shaft of femur proximal and mid third junction right side. As per medical science, practice and procedure, such like fracture of shaft femur in case of minor child of 4/5 years, within a period of two months of the fracture should not be declared as malunited. Moreover, after effects of surgery become visible in long term on growth of child. Remodelling and over-growth become visible in two years after the accident and as such, malunion, if any, should be diagnosed only thereafter. They deny that there was any negligence on the part of opposite party No.2 in providing the treatment. Opposite party No.2 claims that he had acted diligently. Treatment adopted was approved one and is supported by medical science. He is well qualified and has treated more than 100 similar cases. He never performed open reduction and plating surgery in such a fracture of femur in a child of 4/5 years is not recommended. No complication was ever observed by him. Shortening is usually corrected due to natural growth of the bone. They deny that plaster was wrongly applied or that the fracture could not unite. They deny the remaining averments in the complaint. According to them, Insurance Policy No. 20041/46/05/00211 was purchased by them from opposite party No.3 for the period from 11.11.2005 to 10.11.2006 covering liability for a sum of Rs.10,00,000/-. Although, they do not admit any negligence or deficiency in service in this case, yet in the alternative, if due to any reasons, this Forum comes to the conclusion that they are liable to pay any amount, the same is liable to be indemnified and recovered from opposite party No.3. <br /> 4. Opposite party No.3 filed separate reply of the complaint taking the legal objections that complaint has not been filed through authorised and competent person and complainant cannot sue or sued in his own name; complaint is bad for non-joinder of necessary parties i.e. Dr. Gurdev Singh and doctors of D.M.C, Ludhiana; complicated questions of law and facts are involved which require voluminous evidence and as such, matter deserves to be decided by the Civil Court; complainant has not come with clean hands; complainant has neither hired its services nor is there any privity of contract between it and the complainant; complainant is estopped from filing the complaint by his act and conduct; he is not consumer; complaint is false and frivolous and complainant has not come with clean hands. Opposite parties No.1 & 2 had obtained Doctor's Indemnity Insurance Policy (Medical) from it vide policy No. 200401/46/05/00211 effective from 11.11.2005 to 10.11.2006 for a sum of Rs.10,00,000/- and its liability is restricted as per its terms and conditions. This policy is to indemnify the insured in case any liability is fastened upon him/her. Insured has to make the payment to the claimant/complainant and thereafter, Insurance Company shall indemnify the insured. Insured has violated the terms and conditions of the policy. Even if negligence of opposite parties No.1 & 2 is proved, even then, it is not liable to pay any compensation. Complainant has not placed on record all the documents. It denies any negligence on the part of opposite parties No.1 & 2 and deficiency in service on its part. Remaining averments in the complaint stand denied mainly on the ground that they pertain to opposite parties No. 1 & 2.<br /> 5. In support of his allegations and averments in the complaint, Karandeep Singh complainant tendered into evidence affidavit (Ex.C.1) of his father & natural guardian Gurjeet Singh, photocopy of prescription regarding discharge (Ex.C.2), photocopy of bill-cum-payment receipt dated 31.5.06 (Ex.C.3), photocopy of X-ray report (Ex.C.3), photocopies of prescriptions (Ex.C.5 to Ex.C.8), photocopies of cash memos (Ex.C.9 to Ex.C.26), X-ray skiagrams (Ex.C.27, Ex.C.28 & Ex. C.31), photocopy of X-ray report (Ex.C.29), photocopy of prescription slip of Dr. Mohammad Yamin (Ex.C.30) & photocopy of discharge summary (Ex.C.32).<br /> 6. On behalf of opposite parties, reliance has been placed on affidavits (Ex.R.1 to Ex.R.3 & Ex.R.5) of S/Sh.(Dr.) V.P. Bansal, H.S. Bakhshi, Amrit Gupta, opposite party No.2 & Gobind Aggarwal, Divisional Manager of opposite party No.3 respectively, photocopy of consent letter (Ex.R.4) & copy of policy (Ex.R.6).<br /> 7. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the complainant and opposite parties No.1 & 2.<br /> 8. Some are the admitted facts in this case. They are that complainant had injury. There was severe pain in his right femur. He was brought to opposite party No.1-Hospital of opposite party No.2. X-ray of the right femur was done by opposite party No.2. There was closed fracture of right femur. Complainant was admitted on 28.3.2006 in opposite party No.1 and was discharged on 31.3.2006. Plaster was removed on 30.4.2006. <br /> 9. As per complainant, he was not able to walk. He started limping and opposite party No.2 told that with the passage of time, limping would be over. According to opposite parties No. 1 & 2, plaster of paris was removed and X-ray was done. It was found that fracture had united with some over lapping . There was shortening of the right thigh i.e. about less than 2 cms. Such shortening in such like case of child of four years does not require any further treatment or intervention as per medical science. Due to shortening, there would be limping which would stand corrected automatically and naturally with the passage of time. <br /> 10. Complainant has come to seek the relief from this Forum. Onus to prove deficiency in service on the part of opposite parties No. 1 & 2 is upon him as has been held by the Hon'ble Apex Court in the case of Ravneet Singh Bagga Vs. M/s. KLM Royal Dutch Airlines and another-2000(1)CLT-33. Similar view has been held in the case of Medical Superintendent Incharge, Nehru Hospital, Post Graduate Institute of Medical Education & Research Vs. Kanwalinder Singh & Anr.-IV(2004)CPJ-186. Now question for determination before this Forum is as to whether complainant has succeeded in discharging this burden upon him or not. <br /> 11. Arguments pressed into service by Mr. Gupta, learned counsel for complainant are that opposite party No.2 was negligent in treating the complainant. Plaster was wrongly applied due to which fracture could not unite. Complainant suffered bodily pain and he has to undergo unwanted surgery to get the bone of the right femur set right. Parents of the complainant came to know the negligence of opposite party No.2 only when there was conversation among the doctors of DMC, who were treating him. He further argued that complainant was not getting relief after 30.4.2006. He was limping. Dr. Gurdev Singh was consulted on 13.5.2006 who got conducted the X-ray. Skiagram in this respect is Ex.C.27 from which it is clear to the naked eye that bone has not been set right correctly. Even the doctors of D.M.C on investigation diagnosed that there was two months old malunited fracture shaft of femur proximal mid third junction right side. Opposite parties No. 1 & 2 admit that bone had over-lapping and there was shortening of the right thigh by about less than 2 cms. In such a situation, how can it be said that fractured bone can automatically and naturally unite with the passage of time. Opposite party No.2 was to insert plate. If he did not adopt this procedure, he could do so after 30.4.2006 when plaster of paris was removed. Complainant has to go to DMC, Ludhiana. Apart from this, medical record of complainant except prescription slip was not supplied by opposite party No.2. In these circumstances, deficiency in service on the part of opposite parties No. 1 & 2 is established. To support his submissions, he drew our attention to the affidavit Ex.C.1 of Sh. Gurjeet Singh, father of the complainant, copy of the discharge summary issued by DMC, Ludhiana Ex.C.32, photocopy of the discharge slip Ex.C.2, copy (Ex.C.4) of the X-ray report dated 25.6.2006 of Dr. Jhaver's X-Ray Clinic, Skiagram Ex.C.28, X-ray report dated 8.3.2007 Ex.C.29 of Omega Diagnostic Centre (P) Ltd., prescription slip Ex.C.30 of Dr. Mohammad Yamin dated 11.3.2007 and X-ray skiagram Ex.C.31 dated 8.3.2007.<br /> 12. Mr. Goyal, learned counsel for opposite parties No. 1 & 2 vociferously argued that complainant has failed to establish any deficiency in service on the part of the opposite parties No. 1 & 2. Standard treatment was provided by opposite party No.2. This fact stands supported with the medical books and the affidavits Ex.R.1 & Ex.R.2 of Dr. V.P. Bansal and Dr. H.S. Bakshshi respectively. According to him, complainant has not led any expert evidence to show that the treatment given by opposite party No2 is not as per norms/medical standard. Since, complainant was aged about four. Prefect reduction could not be done. Bone was to undergo remodelling process. Limping and shortening of the right thigh by about less than 2 cms at that stage after 30.4.2006 did not amount to negligent act on the part of the opposite parties No. 1 & 2, particularly when there was no angulation and rotation deformity. Limping and shortening were to go in the case of the complainant aged four years automatically and naturally with the passage of time. No further treatment or intervention was required. Open Reduction was not necessary at all. Mere fact that in the DMC, Open Reduction and Internal Fixation (ORIF) was done with small DCP on 22.5.2006 is no ground to hold any deficiency in service on the part of opposite parties No. 1 & 2. So far as medical record is concerned, that was given to the attendants of the complainant.<br /> 13. We have considered the respective arguments. Careful perusal of the complaint reveals that complainant himself is not aware as to which specific treatment was provided by opposite parties No. 1 & 2. In para No. 6 of the complaint, it has been averred that even after operation, the fractured bone could not be set right. Version in para No. 7 of the complaint is that opposite party No.2 refused to handover the bed head ticket saying that he would do re-surgery for rectifying the mistake. Re-surgery pre-supposes prior surgery. This stance is belied with the evidence led by the opposite parties and from Ex.C.32 which has been relied upon by the complainant himself. According to Ex.C.32, hip spica was given for six weeks and was removed. Opposite party No.2 in his affidavit as well as in the reply of the complaint has made it clear that complainant was put on skin traction on Thomas splint. On 31.3.2006 after closed reduction under anesthesia, one and a half hip spica cast was given for four weeks and was discharged. Plaster of paris was removed on 30.4.2006.<br /> 14. So far as the qualifications and experience of opposite party No.2 are concerned, they were not assailed before us by the learned counsel for the complainant. Ex.R.3 is the affidavit of opposite party No.2 according to which he is practicing as Orthopaedic Surgeon for the last 40 years. MBBS was done in 1966 and Post Graduation (MS) Orthopaedic in 1970 from PGI, Chandigarh. He has worked as Consultant Orthopaedic Surgeon, including foreign service on deputation from Govt. of India. He has already treated more than 100 similar cases of closed fracture of femur shaft. In the case of Nirmal Kapoor Vs. Nehru Hospital & Post Graduate Institute of Medical Education & Research & Ors.-I(2006)CPJ-594, there was no evidence to prove that opposite parties i.e. doctors were not competent and that they acted negligently, complaint was dismissed.<br /> 15. Another point requiring consideration is as to whether procedure for treatment adopted by opposite party No.2 was proper and as per medical norms. Conservative treatment was given. Consent was given by the mother of the complainant as is evident from copy of the consent memo Ex.R.4. As per print out taken from Internet www.pubmed.gov produced before us, manual traction reduction without anesthesia and immediate immobilization in a spica cast was used to treat eighty-five children ranging in age from birth to ten years old who had closed femoral-shaft fractures and no associated injuries. Upto two centimeters of overriding, 30 degrees of anterior angulation, and 15 degrees of medial angulation were accepted.<br /> 16. According to the medical book Orthopaedic Management in Childhood by Peter F. Williams, Blackwell Scientific Publications, displaced fractures may also be reduced by traction. This applies particularly to fractures of the shaft of the femur and to supracondylar fractures of the humerus. Skin traction is usually adequate although skeletal traction may be required in older adolescents with fractures of the femur. Children's fractures rarely require open reduction. Further it has been observed in this medical book that it is common for many children's fractures to heal in less than half the time the equivalent injury would take to heal in an adult and non-union is almost unknown. This difference is most apparent in the infant and young child. Extensive re-modeling follows the healing of fractures in children and involves alterations in both length and shape. Diaphyseal fractures stimulate longitudinal growth for upto a year following injury so that a small amount of shortening can be expected to correct spontaneously. Residual angular deformities usually correct spontaneously but rotary malunion will not correct at any age. Complete correction of residual angulation can be expected when the fracture is located close to the growth plate and when the angulation is in the same plane as the motion of the adjacent joint. Correction will often be complete within 6-12 months in young children. <br /> 17. In this medical book position of the fractures has been explained through figures. One of the figures is Figs. 6.66 in which position of the fractured bone is as has been shown in skiagram Ex.C.27. Five year old boy had sustained fracture of the femur in the accident. Immediate hip spica was applied under general anaesthesia. The alignment was correct with small amount of overlap. After seven weeks the fracture had united in good condition. It has further been observed in this medical literature that initial leg length discrepancy usually corrects as a result of stimulation of femoral growth but persistent shortening may occur in older children whose initial over-riding was 2 Cms or more. Children less than 10 years of age who have associated injuries (in particular abdominal injuries, compound injuries or head injuries) are treated initially by Hamilton Russell traction. A hip spica of the same types applied when the other injuries are no longer of concern.<br /> 18. In the Current Diagnosis & Treatment in Orthopedics by Harry B. Skinner, International Edition, Third edition, it has been observed as under :-<br /> “ Bones<br /> Bones are dynamic tissues that serve a variety of functions and have the ability to remodel to changes in internal and external stimuli. Bones provide support for the rank and extremities, provide attachment to ligaments and tendons, protect vital organs, and act as a mineral and iron reservoir for the maintenance of homeostasis.”<br /> It has further been observed in this book as under :-<br /> “Remodeling Mechanisms <br /> Bone has the ability to alter its size, shape and structure in response to mechanical demands. According to Wolff's law regarding bone remodeling in response to stress, bone resorption occurs with decreased stress, bone hpertrophy occurs with increased stress, and the planes of increased stress follow the principal trabecular orientation. This, bone remodeling occurs under a variety of circumstances that alter the normal stress patterns.”<br /> 19. According to K Sembulingam Prema Sembulingam Essentials of Medical Physiology, Second Edition, Jaypee, following are the significance of bone remodeling:-<br /> “In children, because of bone remodeling, the bone becomes thick and adjusts its strength in proportion to the growth. The shape of the bone is also realtered in relation to the growth of the body.” <br /> 20. As per Texbook of Human Histology with Colour Atlas, Third Edition by Inderbir Singh, a growing bone increases both in length and in girth.<br /> 21. Fractures in children are significantly different than they are in adults. A thick vascular lining called the periosteum covers children's bone. This periosteum is much thinner in an adult. In the child, the thicker periosteum can impart some stability to a fracture. With open growth plates and the thick periosteum, children are generally able to heal their fractures much more rapidly than adults. In general, the majority of pediatric fractures can be satisfactorily treated in a cast. Sometimes the fracture is initially placed in a splint prior to the cast to allow for swelling. The cast is placed to hold the fracture in alignment and protect the extremity while the initial healing occurs. Casts immobilize the joint above and the joint below the injured bone. In children below ages of 8-9 years, upto 2 cms of bayonet apposition can be accepted with no long-term adverse effects as overgrowth usually corrects most of the discrepancies. In this age group, acceptable reduction can be treated as early spica cast and it is left on for approximately 6-8 weeks. Unacceptable reduction is more than 2 cms overriding. <br /> 22. In this case, opposite party No.2 put the complainant on skin traction on Thomas Splint. On 31.3.2006, closed reduction under anesthesia, one and half hip spica cast was given and he was discharged. Plaster of paris was removed on 30.4.2006. This was the standard treatment provided by opposite party No.2 to the complainant. As per medical literature, referred to above, conservative standard treatment was rightly given to the complainant. It stands further supported by well experienced and qualified doctors i.e. V.P. Bansal and H.S. Bakhshi through their affidavits Ex.R.1 & Ex.R.2. Opposite party No.2 reiterates his version in his affidavit Ex.R.3.<br /> 23. No-doubt, complainant has brought on record Ex.C.27 X-ray skiagram showing the position of the bone. This X-ray shown to have been taken in Gurdev Hospital, Bathinda on 13.5.2006. Plaster of paris was removed by opposite party No.2 on 30.4.2006. It is not the case of the complainant that after 30.4.2006, he got treatment from opposite party No.2. There is no report regarding the X-ray skiagram given by Dr. Gurdev Singh. He has not been examined by the complainant to show that the procedure adopted by opposite party No.2 in treating the complainant was not as per medical norms. <br /> 24. As per Ex.C.32, complainant remained admitted in D.M.C. From 21.5.2006 to 31.5.2006. Diagnosis was two months old malunited fracture shaft of femur proximal mid third junction right side. Operation ORIF with small DCP ( 6 H, 6S)(Narula) on 22.5.2006 was conducted. Doctors of D.M.C, Ludhiana did not opine in Ex.C.32 that hip spica given by opposite party No.2 which was removed was not the proper treatment and that open reduction was essential. No record of that hospital to this effect has been produced. No doctor of D.M.C, Ludhiana has been examined by the complainant to show that opposite party No.2 acted negligently and against the medical norms. Hence, complainant has utterly failed to prove negligence on the part of opposite parties No.1 & 2. In this view of the matter, we are fortified by the observations of the Hon'ble State Commission of Punjab in the case of Dr. R.N. Sethi and another Vs. Hardial Singh-1997(2)CLT-665. Similarly, complainant did not examine Dr. Mohammad Yamin or Dr. Suresh Jhaver to support his version. It has been held by the Hon'ble State Commission of Gujarat in the case of Pravin Laljibhai Vaghela Vs. Dr. Binoy Palkhivala-1996(2)CPJ-249 that when no expert evidence is brought by the complainant to the effect that doctor was negligent in treatment, complaint is liable to be dismissed. In the case in hand, opposite party No.2 by way of his affidavit has deposed that the right treatment was administered. There is no evidence that any better treatment than this could be given by opposite party No.2. Hence, complaint is liable to be dismissed. For this, we get support from the observations of Hon'ble State Commission of Punjab in the case of Vishal Poly Clinic & Nursing Home and another Vs. Satnam Singh-1999(2)CLT-281.<br /> 25. No doubt, in the discharge summary issued from D.M.C., copy of which is Ex.C.32, diagnosis that it was two months old malunited fracture shaft of femur proximal mid third junction right side. Question is as to whether malunion of fracture at that stage brings the case within the purview of deficiency in service on the part of opposite party No.2. The reply to our minds is in the negative. Admittedly, complainant was less than nine years in age when he got the treatment from opposite party no.2. Plaster of paris was removed on 30.4.2006. On examination, there was shortening of right thigh by about less than two Cms. There was no agulation and rotation deformity. Shortening of less than 2 Cms does not require any further treatment and intervention as the same gets corrected with the passage of time. In children under 13 years of age, malunion of as much as 25 degrees in any plane will remodel enough to give normal alignment of the joint surfaces. Diaphyseal fractures stimulate longitudinal growth for upto a year following injury so that a small amount of shortening can be expected to correct spontaneously. Fact that fractured bone had some overlapping, there was shortening of right thigh by about less than 2 Cms and complainant had limping gait on 30.4.2006 is no ground to conclude deficiency in service on the part of opposite parties No. 1 & 2 in providing treatment in view of the discussion made above. In this case, attendants of the complainant did not wait for correction as remodelling of bone is automatic in children under 13. They took the complainant to D.M.C on 21.5.2006 and got him operated on 22.5.2006. For that negligence and deficiency in service cannot be attributed to opposite party No.2, particularly when he did not fall short of the standard of a reasonably skillful medical person in his field. It is for the expert doctor to decide which type of treatment should be given and to decide whether the operation should be performed or not. The duty of the doctor or a hospital is expected to take reasonable care in administration of the treatment. He cannot be condemned in case of misadventure. For this, reference may be made to the observations of the Hon'ble National Commission in the case of Heirs of the Deceased Narasimha Reddy & others Vs. Managing Director, Rohini Hospital and others-2005(2)CLT-156 & Bimal Kumar Vs. Dr. Barun Kumar-2007 CTJ 264 (CP)(NCDRC).<br /> 26. Allegation of the complainant that medical record was not handed over except prescription slip is not acceptable. Complainant has himself brought on record copy of the discharge slip which is Ex.C.2. Affidavit Ex.C.1 of Gurjeet Singh on this aspect of the matter stands amply rebutted with the affidavit Ex.R.3 of opposite party No.2.<br /> 27. No other point on any other aspect was urged before us at the time of arguments. <br /> 28. In the premises written above, crux of the matter is that complainant has failed to prove medical negligence and deficiency in service on the part of opposite parties No. 1 & 2. Accordingly, complaint is dismissed. Parties are left to bear their own costs. Copy of this order be sent to the parties concerned free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 17.5.2007 President<br /> <br /> <br /> ( Dr. Phulinder Preet) (Hira Lal Kumar)<br /> Member Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg<br />