KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.526/2017

JUDGEMENT DATED: 23.02.2024

(Against the Order in O.P.No.22/2005 of CDRF, Kozhikode)

PRESENT:

APPELLANTS:

(by Advs. P.V. Hari & Sreekanth S. Nair)

Vs.

RESPONDENTS:

(by Adv. L.S. Bhagaval Das)

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

           This appeal is filed by opposite parties 1 and 2 in O.P.No.22/2005 of the Consumer Disputes Redressal Forum, Kozhikode (the District Forum for short).  They are aggrieved by the final order dated 03.05.2017, allowing the complaint, making opposite parties 1,2 and 4 jointly and severally liable to pay the legal heirs of the deceased complainant an amount of Rs.5,00,000/-(Rupees Five Lakhs only) with interest thereon @9% per annum from the date of filing the complaint till the date of payment, together with an amount of Rs.10,000/-(Rupees Ten Thousand only) as litigation costs.  This appeal is filed only by opposite parties 1 and 2.   The 4^th opposite party who has been made jointly and severally liable together with the appellants, has not filed any appeal.  Therefore, the order of the District Forum has become final in so far as the 4^th opposite party is concerned. 

          2.       The complaint was filed on the allegations summarised hereunder.  For the sake of convenience, the parties shall be referred to herein in the manner in which they are arrayed before the District Forum.

          3.       The 1^st respondent herein is the original complainant.  He is no more.  The 2^nd respondent is his wife.  Respondents 3 and 4 are his son and daughter respectively. 

          4.       The complainant was a Mason who was earning his livelihood through daily labour.   He was suffering from stone in the gall bladder and was undergoing treatment of Dr. Jobi Malickal, Assistant Professor of Surgery, Medical College, Kozhikode.  While so, he saw an advertisement in the Mathrubhumi daily dated 11.09.2004 that the Rotary Club, Calicut East and PVS Hospital were conducting a laparoscopic surgery camp, free of cost as community service for economically backward classes.  Pursuant to the offer in the advertisement he went for a medical check up conducted at the PVS Hospital.  He was found to be fit for Laparoscopic surgery.  He was instructed to report for surgery on 18.09.2004.  The surgery was conducted by opposite parties 1,2 and 4 together on the same day.  Before the surgery, the opposite parties introduced themselves as qualified and experienced doctors in laparoscopy.  They also assured him that the said surgery would not cause any bleeding or unbearable pain or harm and that he would be able to go home on the same day itself.

          5.       However, according to the complainant contrary to the assurances made, bleeding with severe and unbearable pain started after the surgery.  When the matter was intimated to the 1^st opposite party, he informed that in some persons there would be bleeding and pain and that there was no reason to get worried.  But he was retained there for observation.  Thereafter, he was removed to the ICU on that day itself.  During the following days, his condition worsened, the bleeding increased and he had breathing difficulty.  Though the matter was informed to the 1^st opposite party, he said there was nothing to worry and instructed the complainant to remain in the hospital for some more days and to take rest.  By this time, the food consumed by the petitioner was found to be getting deposited in the bag attached to the outlet tube provided for draining out the fluids from surgical site.   Tests for detecting cancer was also done, at the cost of the complainant.  Nothing was diagnosed from the said test.  But his condition became worse with each passing day.  At this juncture, some political party leaders intervened and they requested the opposite parties 1 and 2 to provide appropriate medical aid to the complainant.  Thereafter, they opened the affected area by another surgery and found that the sharp surgical instruments used for laparoscopic surgery had pierced and cut off his large intestine into two.  It was only then that the 1^st opposite party could identify the cause of bleeding.

          6.       Thereafter, his intestine was taken out and treated.  By this time the wounded portion of the large intestine had become infected and ulcerated.  After the opening of the affected part by surgery, it was stitched only after twelve days and till then the wound was bandaged with cloth over it that caused severe and unbearable pain to the petitioner.  The complainant had to spend twenty four days at the PVS Hospital including four days in the ICU.  He had paid an amount of Rs.43,000/-(Rupees Forty Three Thousand only) as expenses.  He could not afford the expenses at the hospital by them and he had also lost faith in opposite parties 1,2,3 and 4.  Therefore, the replacement of his large intestine was done at the Medical College Hospital, Calicut under the supervision of
Dr. Jogi Malickal who had treated him earlier.  In addition to the hospital expenses of Rs.43,000/-(Rupees Forty Three Thousand only) complainant had to spend a further amount of Rs.10,000/-(Rupees Ten Thousand only) for other expenses and Rs.6,000/-(Rupees Six Thousand only) for transportation.  The colostomy bag that was attached had to be changed every ten days and one bag cost Rs.470/-(Rupees Four Hundred and Seventy only).

          7.       According to the complainant, he has still not recovered from the incident.  He experiences pain all over his abdomen and he even faces restrictions to sit in the closet for his primary needs.  As a mason, he could not work and as a result the future of his family remains bleak.  There is gross negligence and deficiency in service on the part of the opposite parties 1,2 and 4 who had jointly done the laparoscopic surgery.  According to him, the 1^st and 2^nd opposite parties who are father and son ought to have treated him free of cost, since the accident had occurred in the course of their service oriented work.  Opposite parties 6 and 7 who were part of the venture of the Rotary Club and PVS Hospital had also not responded to the genuine request of the complainant to find a solution to his case.

          8.       The present situation had arisen due to the negligence on the part of opposite parties 1,2 and 4 in conducting the laparoscopic surgery.  The other opposite parties are also vicariously liable for the injury as it was a joint venture of all the opposite parties.  So all of them are liable to compensate him for the sufferings, financial loss and their indifferent attitude which amounts to deficiency in service on their part.  Complainant therefore sought an amount of Rs.5,00,000/-(Rupees Five Lakhs only) as compensation for his sufferings and other expenses, apart from the costs of the proceedings. 

          9.       All the opposite parties filed versions except 6^th opposite party.  The 6^th opposite party was therefore set exparte by the District Forum.

          10.     Opposite parties 1 and 3 filed a common version denying all the allegations of the complainant as false and frivolous.  According to them on the request of the 6^th opposite party, for conducting a laparoscopic surgery camp under noted laparoscopic surgeon Dr. S. Rajkumar,  they had agreed to provide facilities in their hospital as part of their community service for the poor.  Upon preliminary examination the complainant was found to be suffering from Calculus Cholecystitis and a fit case for laparoscopic cholecystectomy.  The nature of illness and complications that could arise were fully explained to the complainant and after understanding the same and also the liability of the hospital the complainant signed the consent forms.  The surgery was conducted on the complainant on 18.09.2004 by Dr. T.S. Rajkumar with proper care and caution.

          11.     The post-operative period was uneventful and the condition of the complainant was stable till 20.09.2004.  The complainant had high spiking fever, symptoms of jaundice and abdominal pain.  Investigations like scanning and blood test were conducted to find out the cause for fever and jaundice.  At no point of time food items were noticed in the drain.  The complainant was seen by Gastroenterology surgeons on 22.09.2004 and advice was sought from the consultant Dr. C. Gokulan.  It was then decided to re-examine the petitioner and accordingly a laparotomy was done on 24.09.2004.  A large subphrenic, subhepatic haematoma was found.  This was evacuated and thorough periforcal lavage was given.  A perforation was seen on the flexure of the colon.  Right colon was mobilized and divided colostomy established in right lower quadrant.  Probable reason for perforation was while dissecting the colon which was adherent to the gall bladder in this case, a small portion of the colon would have been burnt which could have perforated after two days when the fever developed.  At no point of time any test for cancer was done.

          12.     They further contended that the condition of the complainant was significantly improved after the surgical intervention on 24.09.2004.  Maximum care and attention was taken during the initial surgery but unfortunately the surgery in this case was not a total success.  In laparoscopic surgical procedure, there is a percentage of acceptable risk which was explained to the complainant also.  The initial surgery was carried out by the 4^th opposite party.  They are responsible only for their supportive care.  The complainant was admitted at the hospital for twenty four days and he had undergone two major operations.  Under normal circumstances, the total expenditure for such procedures would come to about Rs.1,00,000/-(Rupees One Lakh only).  They have provided costly medicines to the maximum extent possible, free of cost.  Even as per the hospital records approximately Rs.11,000/-(Rupees Eleven Thousand only) was paid by the complainant during his stay at the hospital.  When a complication was reported soon after the laparoscopic surgery, they had provided all required treatments and assistance to the complainant collecting only minimum expenses and helped him to recover from the complications.  All other allegations of the complainant were denied as not true or correct.  The compensation claimed was, according to them excessive, exaggerated and imaginary.  There is no nexus between the claim put forward and the inconvenience and difficulties suffered by the complainant.  There was absolutely no negligence, laches or deficiency in service on their part as alleged.  Therefore, they prayed for dismissal of the complaint with costs.

          13.     The 2^nd opposite party in their version contended that the petition was not maintainable against him since the complainant was not a consumer in relation to him as he had not availed any service for consideration from him.  He reiterated the statements and contentions in the version of opposite parties 1 and 3 and prayed for dismissal of the complaint with costs to him.

          14.     The 4^th and 5^th opposite parties also filed a combined version stating that the complainant was not a consumer in relation to them, since he had not availed any service from them for consideration paid or promised.  Therefore, the complaint was not maintainable against them.  The 4^th opposite party admitted that he had conducted the surgery on the complainant along with opposite parties 1 and 2 on 18.09.2004.  But, it is contended that the surgery which was complicated in nature and was made more difficult, since the illness of the complainant was in an advanced stage at the time of surgery.  The condition of the complainant at the time of operation was such that no surgery could be performed without causing any damage to the internal organs of the complainant.  The life of the complainant was in imminent danger.  It was in these circumstances that the surgery was performed.  According to them, the surgery was successful and that was why the complainant was alive.  All aspects regarding his condition and the nature of the operation were clearly explained to him before the operation.

          15.     Their case is that, the colon, small intestine and the gall bladder were all stuck together in one mass.  In the process of separating the stuck structures, that part of the large intestine was probably mildly injured which became a full-fledged perforation or opening in the large intestine in three to five days.  This is a well known complication of a difficult laparoscopic procedure.  On 24.09.2004, the injured part was correctly brought out by colostomy through correct steps.  So there was no negligence or deficiency in service in the treatment of the complainant and therefore they prayed for dismissal of the complaint with costs.

          16.     The 7^th opposite party District Governor of the Rotary Club in his version contended that he was not involved at any stage of the procedure.  The complainant has not availed any service from him for consideration paid or promised and hence he was not a consumer in relation to him and so prayed for the dismissal of the complaint.

          17.     The parties went to trial on the above pleadings.  The evidence in this case consists of documents Exhibits A1 to A108, B1 and B2 and depositions of PW1, RW1 and RW2.

          18.     According to the appellants, the complainant was not a consumer coming within the provisions of the Consumer Protection Act, 1986 (the Act for short) and therefore, the complaint ought to have been dismissed on the said ground alone.  The District Forum has based its conclusions on mere conjectures and hypotheses and therefore, the order under appeal is liable to be set aside.  According to them, twenty nine surgeries were done on 18.09.2004.  There were no complications in any of the other surgeries.  It is contended that the complication in the case of the complainant was due to his own physical ailments and not the negligence or lack of care on the part of the appellants.  Since the surgery was conducted as part of free community service without any charges, complainant was also not a consumer.  On the above grounds they sought for interference with the order of the District Forum. 

          19.     We have heard the counsel appearing for the contesting parties at length.  We have also carefully perused the lower court records of the case called for and produced before us by the District Forum.  The first contention put forward by the counsel for the appellants is that, since the laparoscopic surgery was conducted as part of a free medical camp, conducted by the Rotary Club of Calicut free of cost, the complainant was not a consumer.  Though it is true that the laparoscopic surgery was done as part of a free medical camp organised for the purpose of service, in the case of the complainant, the complications that arose required prolonged treatment for which, as admitted by RW2, he had to incur an amount of Rs.11,000/-(Rupees Eleven Thousand only) as hospital charges.  According to the complainant, he had to spent more than Rs.43,000/-(Rupees Forty Three Thousand only).  Since the hospital expenses of Rs.11,000/-(Rupees Eleven Thousand only) is admitted by the opposite parties, there has been passing of consideration and therefore, the finding of the District Forum that the complainant was a consumer under the Act cannot be found fault with.  The said finding is therefore confirmed.

          20.     The other question that arise for consideration is whether the opposite parties were negligent in treating the complainant.  It is not in dispute that, the free laparoscopic surgery that was proposed to be conducted by the Rotary Club of Calicut (East) and PVS Hospital Pvt. Ltd. as part of community service had been give wide publicity through the local news papers and other media.  Pursuant to that, a number of persons had approached the opposite parties with various ailments.  The patients were subjected to an initial screening and process of selection after which, the complainant was found to be fit to undergo the laparoscopic surgery and was selected for the said procedure.  It is contended that, the 4^th opposite party who conducted the laparoscopic surgery was a highly qualified and distinguished surgeon.  He has been examined as RW1.  According to him he is the holder of an FRCS and a person who has conducted more than twenty thousand laparoscopic surgeries.  He has authored a number of books on the subject.  Two of his books are used as referral books both in India and abroad.  According to RW1, the complainant was suffering from a condition called Calculus Cholecystitis and was a fit case for laparoscopic cholecystectomy.  The above fact has been spoken to by RW1 and RW2.  Therefore, the complainant was not in any sort of seriously sick or infirm condition before the surgery.  When he was examined as RW1 it was stated that the complainant was suffering from a serious condition and that had the laparoscopic surgery not been done he would not have been alive.  It has been further deposed by RW1 that, the gall bladder, small intestine and large intestine of the complainant were found to be stuck together when the surgery was done.  Therefore, the gall bladder had to be removed after dissecting it from the other tissues.  Such dissection is done by releasing the fat and tissues to which the gall bladder was stuck for which an electro thermal device had to be used.  The small blood vessels were sealed and the gall bladder was separated form the fat tissues using the cautery machine.  While using the said machine, there could be transmission of electrical energy to the neighboring organs.  In this case, such transmission had caused perforation to the large intestine, which according to RW1 is a known complication associated with such surgery.   It is clear from the deposition of RW1 that, he was fully aware of the complication that the cautery machine could cause, especially when he was a person who claims to have conducted more than twenty thousand similar surgeries.  However, he did not take any remedial measures to control or contain such complications.  According to RW2 he had left for Chennai after the surgery.  The complainant was complaining of pain in his stomach soon after the surgery.  But such pain was dismissed as trivial and not of any importance by the opposite parties 1,2 and 4.  The complainant therefore was left to bear the agony and pain in his stomach from 18.09.2004 to 24.09.2004.  It was only on 24.09.2004 that a laparoctomy was conducted.  On the said date a decision to reexplore the petitioner was taken and a subhepatic haematoma was found.  This was evacuated and thorough periforcal lavage was given.  It was found that there was a perforation.  His right colon was mobilised and divided colostomy was established in the right lower quadrant.  It is stated that the perforation could have occurred because of the fact that a small portion of his colon could have been burnt and got perforated after two days when fever developed.  However, from the admitted facts, it is clear that the complainant was in severe discomfort soon after the laparoscopic surgery and that the fever had developed subsequently, which is an indication that the infection in his stomach had been progressing from the date of the surgery.  Had the infection been detected earlier, the pain and agony that he had to undergo could have been avoided.  In the absence of RW1 it was RW2 and 2^nd opposite party who had attended to the patient and conducted the other surgical procedures.  It is also the evidence of RW2, that had there been any negligence, that would have been only on the part of RW1. 

          21.     Considering the expertise and the vast experience that RW2 claims to possess in performing laparoscopic surgeries, a greater degree of care and caution ought to have been exercised by him especially when he had found that the gall bladder of the complainant was remaining stuck to the other organs in his abdominal cavity.  It was also incumbent on RW1 as well as opposite parties 1 and 2 to have taken proper precautionary measures to monitor the complaints of the complainant closely and to ensure that the deterioration in his condition was not attributable to any such colostomy injury that could have been caused during the surgical procedure.  The omission on the part of opposite parties 1,2 and 4 to exercise such care to monitor the condition of the complainant properly after the surgery and to initiate quick remedial measures to control and contain the infection that followed show that they were negligent in providing treatment to the complainant.  Added to the above is the fact that this appeal has been filed only by opposite parties 1 and 3.   The 4^th opposite party has accepted the verdict of the District Forum without challenging the same.  It is not in dispute that the complainant has expired during the pendency of this case though the cause of his death is not forthcoming. 

          22.     The complainant who was a mason eking out a precarious livelihood for himself and his family by doing manual labour, as a consequence of the deterioration of his health was made an invalid.  He and his family were left in a position of financial stringency.  He was aged only thirty nine years at the time of surgery.  The quality of his life and livelihood were seriously impaired as a result of the unforeseen consequences that followed his laparoscopic surgery.  He also had a premature death.  The compensation awarded by the District Forum, in the above circumstances can only be considered to be reasonable.  The amount of costs awarded also is reasonable and does not call for any interference.  For the above reasons, this appeal fails and is accordingly dismissed, confirming the order passed by the District Forum in O.P.No.22/2005.

          23.     This appeal has been pending before this Forum from 2017 onwards.  The destitute wife and children are therefore entitled to the costs of this litigation which is fixed as Rs.15,000/-(Rupees Fifteen Thousand only) which amount, respondents 2,3 and 4 shall be entitled to receive out of the statutory deposit made by the appellants at the time of filing this appeal.

SL